GARCIA

Interim Decision #3268


Interim Decision #3268



              In re Felipe GARCIA-Linares, Respondent

                              File A36 651 939 - Seattle

                                Decided March 6, 1996

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) Nunc pro tunc permission to reapply for admission, an administrative practice not
  expressly authorized by statute, is available only in the limited circumstances where a grant
  of such relief would effect a complete disposition of the case, i.e., where the only ground of
  deportability or inadmissability would be eliminated or where the alien would receive a
  grant of adjustment of status in conjunction with the grant of any appropriate waivers of
  inadmissability.
(2) A grant of nunc pro tunc permission to reapply for admission is not available to a respondent who, in spite of such a grant, would remain deportable under sections 241(a)(2)(A)(iii)
  and (B)(i) of the Immigration and Nationality Act, 

(a)(2)(A)(iii) and (B)(i)
  (1994), as a result of a drug-related conviction.
(3) An alien who returned to the United States following deportation with a visa, but without
  obtaining advance permission to reapply, is not eligible to apply for nunc pro tunc permission to reapply for admission in conjunction with an application for a waiver of inadmissibility under section 212(c) of the Act, 

(c) (1994), because he is not
  independently eligible for the waiver as a result of his unlawful entry.

FOR RESPONDENT: Jay W. Stansell, Esquire, Seattle, Washington

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,
HURWITZ, VILLAGELIU, FILPPU, COLE, and MATHON, Board Members. Dissenting
Opinions: GUENDELSBERGER, Board Member, joined by SCHMIDT, Chairman;
ROSENBERG, Board Member.

HOLMES, Board Member:

   In a decision dated May 2, 1994, an Immigration Judge found the respondent deportable under sections 241(a)(1)(A), (2)(A)(iii), and (2)(B)(i) of the
Immigration and Nationality Act, 

(a)(1)(A), (2)(A)(iii), and
(2)(B)(i) (1994). The Immigration Judge further determined that the respondent was ineligible for nunc pro tunc permission to reapply for admission
after deportation, and pretermitted the respondent’s request for relief under
section 212(c) of the Act, 

(c) (1994). The respondent
appealed, challenging only that portion of the Immigration Judge’s decision

                                             254
                                                                   Interim Decision #3268


finding him ineligible for relief from deportation. The appeal will be
dismissed.

                        I. FACTUAL BACKGROUND
   The principal facts of the case are not in dispute. The respondent is a
native and citizen of Mexico who initially entered the United States without
inspection in November 1975. That same year, he was granted voluntary
departure by the Immigration and Naturalization Service and returned to
Mexico. He reentered the United States once again without inspection in January 1976. He was arrested by the Service in June 1977 and was granted a
period of voluntary departure through September 1977. The respondent married a United States citizen in June 1977. On the basis of that marriage, an
immediate relative visa petition was approved on his behalf in July 1977. As
a result, the Service granted the respondent a series of 6-month extensions of
voluntary departure over the next 4 years. During this period, two children
were born of the respondent’s marriage. The respondent’s last extension of
voluntary departure expired on August 22, 1981.
   In October 1981, the respondent was placed in deportation proceedings
because he had never departed the United States voluntarily to regularize his
status. At his deportation hearing, the respondent admitted deportability as
charged and was granted the privilege of voluntarily departing from the
United States until September 25, 1982, with an alternative order of deportation to Mexico. The respondent again failed to depart the United States by the
specified deadline. He was sent a notice to report for deportation by certified
mail at his last known address on November 2, 1982. He was ordered to
report for deportation on November 30, 1982. The respondent failed to claim
the notice of deportation from the post office and the letter was returned to the
Service in December 1982.
   The respondent thereafter left the United States and returned to Mexico.
As a result of this departure, he was considered to have been “deported in
pursuance of law” under section 101(g) of the Act, 

(g)
(1982). He proceeded to the United States embassy in Mexico City in February 1983 and received an immigrant visa on the basis of his marriage to the
United States citizen. With this visa, he reentered this county on March 27,
1983, as a lawful permanent resident. However, the respondent never
applied for advance permission to reenter the United States as required by
section 212(a)(17) of the Immigration and Nationality Act, 

(a)(17) (1982).1 He has continued to reside in this country ever since,
although he and his wife were divorced in August 1983.

  1 At the time, section 212(a)(17) of the Act (now redesignated as section 212(a)(6)(B))

rendered inadmissible any previously-deported alien who, without permission, sought reentry,
regardless of when his or her deportation or removal occurred. In its present form, section
212(a)(6)(B) of the Act renders inadmissible only those previously-deported aliens (other than

                                            255
Interim Decision #3268


  II. CURRENT DEPORTATION PROCEEDINGS AND ISSUE
   The respondent’s status in this country would likely have remained
unquestioned had he not brought himself to the Service’s attention in 1994 by
committing a crime. However, on April 7, 1994, he was convicted in the
Superior Court for the State of Alaska at Kodiak, for the offense of misconduct involving a controlled substance (third degree), in violation of Alaska
Statutes § 11.71.030(a)(1). The respondent received a sentence of 120 days
in jail in addition to 3 years of probation. As a result of this conviction, the
Service initiated deportation proceedings against him in September 1994.
   The Service initially charged the respondent with deportability as an alien
convicted of an aggravated felony and a controlled substance violation. On
October 13, 1994, however, the Service lodged additional charges alleging
that the respondent was deportable as one excludable at entry, both because
he had not received advance permission to reapply for reentry and because he
did not possess a valid entry document. See sections 241(a)(1)(A),
212(a)(6)(B), (7)(A)(i)(I), (7)(B)(i)(II) of the Act. The respondent was found
deportable on these charges, and his deportability is not at issue on appeal.
   By way of relief from deportation, the respondent sought nunc pro tunc, or
retroactive, permission to reapply for admission to the United States and the
opportunity to apply for a waiver of inadmissibility under section 212(c) of
the Act. Opposing this request, the Service contended that nunc pro tunc permission to reapply for admission was not available to the respondent since a
grant of such permission would not completely dispose of his case. Hence,
the Service argued, without such a grant, the respondent never acquired the
status of lawful permanent resident in 1983. Thus, he could not qualify for
relief under section 212(c) of the Act. The Service asked the Immigration
Judge to pretermit the respondent’s application for section 212(c) relief.
   The issue before the Immigration Judge was whether the respondent could
concurrently request nunc pro tunc permission to reapply for admission after
deportation and a waiver under section 212(c) of the Act. Confronted with
this exact issue, the Board had ruled in an earlier unpublished decision that
neither an Immigration Judge nor this Board had the authority to grant a
respondent nunc pro tunc permission to reapply for admission to enable him
to apply for a waiver under section 212(c).2 Citing this previous unpublished
Board decision, the Immigration Judge found the respondent ineligible for
the relief. This appeal followed.

those convicted of an aggravated felony) who seek admission without the required permission
within 5 years of the date of deportation or removal. In the case of an alien convicted of an
aggravated felony, this 5-year period has been extended to 20 years.
   2 As this prior case arose in Seattle before the same Immigration Judge and as the respondent

in that case was also represented by the Northwest Immigrant Rights Project, the Immigration
Judge and the parties were aware of and addressed this unpublished Board decision. Matter of
Perez-Gonzalez, A72 149 152 (BIA Sept. 29, 1994).

                                             256
                                                                 Interim Decision #3268


        III. PREVIOUS UNPUBLISHED BOARD DECISION
   In this previous case, the Immigration Judge had relied on the Board’s
holding in Matter of Roman, 

 (BIA 1988), and concluded
that he did not have the authority to grant the respondent nunc pro tunc permission to reapply for admission since the respondent remained deportable
on the basis of his drug conviction. Consequently, the Immigration Judge had
found the respondent statutorily ineligible for the waiver provided for in section 212(c) of the Act because he could not establish that his entry as a permanent resident was lawful. See Monet v. INS, 

 (9th Cir. 1986);
Matter of Longstaff, 

 (5th Cir. 1983), cert. denied, 

 (1984); see also Fedorenko v. United States, 

 (1981). The
respondent in that case appealed, arguing that grants of nunc pro tunc permission to reapply and of relief under section 212(c) could be made concurrently, thus rendering the respondent eligible for both forms of relief and
effecting a complete resolution of the case. However, the Board affirmed the
decision of the Immigration Judge. The same legal issues are raised in the
present case, albeit under somewhat different factual circumstances.3

      IV. NUNC PRO TUNC REQUESTS TO REAPPLY FOR
                      ADMISSION
   We note initially that there is no provision in the immigration laws that
expressly authorizes nunc pro tunc permission to reapply for admission to
cure an alien’s failure to obtain such permission prior to reentry after deportation. However, even prior to the enactment of the Immigration and Nationality Act of 1952, ch. 477, 

, there had long been an administrative
practice of granting such relief “in a few well-defined instances.” Matter of
S-N-, 

, 76 (BIA, A.G. 1954). And, in 1954, the Attorney General ruled that there was no reason to reverse this practice following the
enactment of the 1952 Act. 

   Thus, Immigration Judges and this Board have long considered such
requests for “relief.” However, the instances in which such relief could be
granted have been limited to those in which the grant would effect a complete
disposition of the case, i.e., where “the only ground of deportability or
inadmissability would thereby be eliminated” or where the alien would
receive a grant of adjustment of status in conjunction with the grant of any
appropriate waivers of inadmissibility. Matter of Ng, 

(BIA 1979); see also Matter of Roman, supra; Matter of Ducret, 

 For example, as noted by respondent on appeal, there is no evidence in this case of a

“knowing, affirmative misrepresentation [by this respondent] in order to circumvent the need
for advance permission to reapply.” Moreover, the respondent’s statement before the
Immigration Judge and on appeal that this case presents greater equities is not challenged.
These differences, however, are only significant if one reaches the issue of discretion.

                                           257
Interim Decision #3268


Dec. 620 (BIA 1976); Matter of Vrettakos, 

 (BIA 1973;
1974), and cases cited therein; 

(d), 242.8(a) (1995).
    It is the respondent’s position that a grant of nunc pro tunc permission to
reapply for admission after deportation is available to him since such a grant
would eliminate all the grounds for which he was excludable at the time of his
1983 entry.
    It is true that a grant of nunc pro tunc permission to reapply for admission
would cure the respondent’s “inadmissibility” at the time of entry and, hence,
his deportability as an excludable alien. However, the authority of this Board
and the Immigration Judges to grant such permission in deportation or exclusion proceedings, which in essence has been gleaned from the Act, is limited.
As noted above, it has been extended only to instances where all established
grounds of deportability or inadmissibility are eliminated. A grant of nunc
pro tunc permission to reapply for admission in this case would not effect a
complete disposition of the case because the respondent, in spite of such a
grant, would remain deportable under sections 241(a)(2)(A)(iii) and (B)(i) of
the Act. We believe our holdings in Matter of Roman, supra; Matter of Ng-,
supra; Matter of Ducret, supra; and Matter of Vrettakos, supra, are controlling and require the denial of the respondent’s request. See Perez-Rodriguez
v. INS, 

 (7th Cir. 1993) (upholding this Board’s interpretation of
its authority to entertain applications for retroactive permission to enter the
United States.)4

              V. CONCURRENT REQUESTS FOR RELIEF
   In so concluding, we agree with the respondent that in other factual circumstances, aliens can apply for multiple forms of relief concurrently. The most
recent example of this is Matter of Sosa-Hernandez, 

 (BIA
1993), a case upon which the respondent has relied, where an alien was permitted to apply for a waiver under former section 241(f) of the Act, 

(f) (1988), in conjunction with a waiver of inadmissibility under section
212(c) of the Act. In allowing the alien to do so, however, we specifically distinguished the case from Matter of Roman, supra, noting that, unlike Roman,
who was attempting to “bootstrap” her eligibility for two forms of relief,
Sosa-Hernandez was separately eligible for section 241(f) relief.5
  4 In his appeal brief, the respondent argues that Matter of Ng, supra, and Matter of Vrettakos,

supra, are inapplicable to his case since those cases involved applications for advance
permission to reapply for admission. In both cases, we also addressed the issue of when an
Immigration Judge and this Board may grant an alien nunc pro tunc permission, and, therefore,
these cases serve as precedent here.
  5 In Matter of Roman, supra, the alien was found ineligible for section 241(f) relief because she

was not “otherwise admissible to the United States at the time of entry” due to her inadmissibility
under section 212(a)(17) of the Act. She also was found ineligible for nunc pro tunc permission to
reapply for admission due to her excludability at entry under section 212(a)(20) of the Act. This
Board concluded that, since she could not qualify for either form of relief independently of the
other, she could not establish combined eligibility for both forms of relief.

                                               258
                                                                     Interim Decision #3268


   A second case cited by the respondent is Matter of Gabryelsky, 

 (BIA 1993), wherein the Board held that a section 212(c) waiver
could be used in conjunction with an application for adjustment of status by
an alien who was deportable for both drug and weapons offenses. We did not
consider Gabreyelsky’s concurrent requests governed by Matter of Roman
since Gabreyelsky did not need to have his status adjusted to that of a lawful
permanent resident to become eligible to apply for section 212(c) relief.
Moreover, federal regulations specifically permit aliens to apply for the benefits of section 212(c) of the Act in tandem with an application for adjustment
of status. See 

(e) (1995). See generally 

(a)
(1995).
   The respondent’s reliance on Matter of Millard, 

 (BIA
1965), also is not controlling, as the applicant therein qualified for the two
statutory waivers that she sought under former sections 212(g) and (h) of the
Act, 

(g) and (h) (1964), which together waived all grounds
of excludability.6 This was an exclusion case that did not (and could not)
involve any separate grounds of deportability. Cf. Matter of Ducret, supra, at
623 (“In the event that an additional [deportation] charge is both lodged and
established, the Immigration Judge will no longer have jurisdiction to grant
the respondent’s application.”).
   The respondent nevertheless maintains that he is eligible for nunc pro tunc
permission to reapply for admission and for section 212(c) relief since, once
nunc pro tunc permission is granted, the remaining charges arising from his
drug conviction could be resolved by a grant of section 212(c) relief. A similar argument, however, was raised and rejected in Matter of Roman, supra.
   In fact, the respondent here is attempting to bootstrap his eligibility for
relief much as did the alien in Matter of Roman, supra. He is not eligible for
relief under section 212(c) unless his entry in 1983 was lawful. That entry
could only be considered lawful if he is granted nunc pro tunc permission to
reenter. However, this latter form of “relief” is not specifically authorized by
statute. It exists as a longstanding administrative practice permitted only in
limited circumstances not present here. While it may be tempting to
incrementally extend administrative authority, particularly as each small step
appears a minor expansion from the last (but ultimately can lead to a finding
that no rational basis exists not to provide eligibility for relief to all), we are
not willing to do so here, where the remedy in question has no specific statutory underpinning.




  6 Following this decision, sections (g) and (h) of section 212 of the Act were redesignated as

sections (h) and (i), respectively. Section 15(c) of the Immigration Act of October 3, 1965, 

 Stat. 883, 893.

                                              259
Interim Decision #3268


  VI. ADDITIONAL ARGUMENTS REGARDING NUNC PRO
       TUNC PERMISSION TO REAPPLY FOLLOWING
                   DEPORTATION
   In a related argument, the respondent complains that by denying him the
opportunity to apply for section 212(c) relief, we are in effect violating his
rights to due process and equal protection under the law. The respondent submits that he is being treated differently from those aliens in, e.g., Matter of
Sosa-Hernandez, supra; Matter of Gabryelsky, supra; and Matter of Millard,
supra, who were able to apply for concurrent remedies in the course of their
hearings. However, this argument presupposes that the respondent and these
other aliens are similarly situated. For the reasons we have discussed above,
such is not the case. Moreover, if the narrowly applied, administratively created practice of nunc pro tunc permission to reapply for admission after
deportation were found to result in equal protection violations, then at least
some consideration would have to be given to ending this practice rather than
extending it further.
   The respondent also urges that he should be treated like other previously
deported, longtime residents facing deportation on drug-related charges, who
sought and were accorded advance permission to reapply prior to being convicted of “a deportable conviction.” He argues that such aliens are allowed to
apply for section 212(c) relief and that there “is no legitimate interest or rational basis in distinguishing between longtime residents of the United States
based on whether they apply for nunc pro tunc permission prior, or subsequent, to another deportable ground arising.” However, the fact that an alien
has committed a crime and the timing of such a crime can be determinative
under the Act. See, e.g., section 241(a)(2)(A)(i) of the Act. The respondent’s
argument in this regard really is not materially different from the assertion
that, if he had applied for and received advance permission to reenter prior to
his admission in 1983, he would not be in his present predicament.
   The respondent also states that the Service kept him ignorant of his
“excludability” for 11 years, and that had he known that his status as a lawful
permanent resident was in question he would have requested nunc pro tunc
permission to reapply for admission long ago. It is not within the jurisdiction
of this Board, however, to review the wisdom of the Service’s decision
whether or when to issue an Order to Show Cause. See Lopez-Telles v. INS,

 (9th Cir. 1977); Matter of Quintero, 

 (BIA
1982); Matter of Geronimo, 

 (BIA 1971). In any event, there
is no evidence that the Service was actually aware of the respondent’s
deportability before his conviction brought him to the Service’s attention or
that the Service intentionally elected to “withhold” this information from
him. The Service certainly was not aware that the respondent was going to
commit a crime, which is the reason he is in his present difficulty. The
respondent cannot fairly lay responsibility for this at the feet of the Service.

                                       260
                                                                     Interim Decision #3268


   The respondent finally argues that fundamental fairness dictates that his
status as a lawful permanent resident should not be vulnerable to challenge
indefinitely. However, there is no “statute of limitations” in deportation proceedings. Biggs v. INS, 

 (9th Cir. 1995); see also Monet v.
INS, supra; Oloteo v. INS, 

 (9th Cir. 1981); Ubiera v. Bell, 

 (S.D.N.Y. 1978); Matter of S-, 

 (BIA 1961;
A.G. 1962).

  VII. INELIGIBILITY FOR RELIEF UNDER SECTION 212(c)
   Eligibility for relief under section 212(c) of the Act requires the respondent to have been lawfully admitted for permanent residence. See section
212(c) of the Act; Castillo-Felix v. INS, 

 (9th Cir. 1979); Matter
of T-, 

 (BIA, A.G. 1954). Had the respondent obtained
advance permission to reapply for admission, he would presently be eligible
to apply for section 212(c) relief. However, he did not do so and the immigrant visa that enabled him to enter the United States in 1983 was not properly issued as the result of this failure. See sections 101(a)(16), 212(a)(17) of
the Act, 

(a)(16), 1182(a)(17) (1982). Thus, the respondent
was never “lawfully” accorded the privilege of residing permanently in the
United States as an immigrant, and he is therefore ineligible for relief under
section 212(c) of the Act. See section 101(a)(20) of the Act. Matter of Wong,

 (BIA 1972), aff’d sub nom. Lai Haw Wong v. INS, 

 (9th Cir. 1973); Matter of T-, supra; see also Matter of S-, 

 (Comm. 1988). Accordingly, the appeal must be dismissed.
   ORDER:           The appeal is dismissed.
DISSENTING OPINION: John W. Guendelsberger, Board Member,
in which Paul W. Schmidt, Chairman, joins
    I respectfully dissent.
    The majority opinion precludes the consideration of nunc pro tunc1 (retroactive) permission to reapply for admission after deportation in conjunction
with a request for relief under section 212(c) of the Immigration and Nationality Act, 

(c) (1994). I agree with the majority opinion insofar
as it states that such permission to reapply for admission may be granted retroactively only where the grant would completely dispose of a case. However, I disagree with the majority that this is not such a case. I agree with
Board Member Lory D. Rosenberg’s dissent.
    A retroactive grant of permission to reapply for admission after deportation combined with a section 212(c) waiver would completely dispose of this
case. Allowing such concurrent applications is the simplest, most practical,
  1 Nunc pro tunc (“now for then”) is a “phrase applied to acts allowed to be done after the time

they should be done, with a retroactive effect, i.e., with the same effect as if regularly done.”
Black’s Law Dictionary 1069 (6th ed. 1990).

                                              261
Interim Decision #3268


and fairest approach. It would allow us to decide the case of this deportable
lawful permanent resident after a full consideration of all the positive and
negative factors.

      I. AUTHORITY TO GRANT RETROACTIVE RELIEF
   In the interests of justice, this Board has long granted nunc pro tunc permission to reapply for admission to cure an alien’s failure to have requested
and received permission to reapply for admission after having been deported.
Immigration Judge and Board authority to grant such nunc pro tunc relief is
derived from the language of 

(d) (1995), which confers the
power to exercise “such discretion and authority conferred upon the Attorney
General and by law as is appropriate and necessary for the disposition of the
case.” In this case, the consideration of nunc pro tunc permission to reapply
is both “appropriate and necessary” to a fair and just disposition of the case.
In addition, a review of Board precedents related to this issue indicates that a
grant of nunc pro tunc permission to reapply is appropriate in the instant case.

    II. PRIOR BOARD PRECEDENTS CONFIRM THE
AUTHORITY TO GRANT NUNC PRO TUNC PERMISSION TO
         REAPPLY IN A RANGE OF SITUATIONS
   In Matter of S-N-, 

 (BIA, A.G. 1954), the Board found (and
the Attorney General agreed) that Immigration Judges and the Board have
the authority to rule on an application for nunc pro tunc permission to reapply
for admission to remove the ground of inadmissibility caused by inadvertent
failure to obtain such permission in advance (former section 212(a)(17) of
the Act, 

(a)(17) (1952)). The Board noted that “it is a basic
concept of the Board’s appellate jurisdiction that it must do complete justice
for the alien in a given case, and therefore, must take any action necessary to
dispose of the particular case.” 

.
   The only ground of exclusion at issue in Matter of S-N- was section
212(a)(17). In a number of subsequent decisions, however, nunc pro tunc
permission to reapply for admission has been afforded in cases involving
additional grounds for exclusion or deportation in combination with various
forms of discretionary relief. For example, the Board, in granting retroactive
permission to reapply for admission, has also found that such permission precluded the derivative charge under former section 212(a)(20) of the Act, 

(a)(20) (1976), that the applicant lacked valid immigration
papers. Matter of Martinez, 

 (BIA 1976).
   In fact, when faced with the same issue as in the instant case, the Board has
granted nunc pro tunc permission to reapply for admission after deportation
in conjunction with section 212(c) relief. Matter of Farinas, 

 (BIA 1967) (nunc pro tunc permission to reapply combined with waiver
of passport, immigrant visa, reentry permit, or other documentation

                                      262
                                                                   Interim Decision #3268


requirements under section 211(b) of the Act, 

(b) (1964), in
conjunction with a waiver of excludability under section 212(c)). See also
Matter of Rapacon, 

 (R.C. 1973) (combining nunc pro tunc
permission to enter with application for adjustment of status under section
245 of the Act, 

 (1970)).
   In Matter of Vrettakos, 

 (BIA 1973, 1974), this Board
explained that it would limit nunc pro tunc permission to reapply for admission
to situations in which such a step would be “appropriate and necessary for the
disposition of the case.”Vrettakos, who had entered as a crewman, sought nunc
pro tunc permission to reapply for admission combined with the discretionary
relief of adjustment of status under section 245 by virtue of his marriage to a
United States citizen. Because of his status as an alien crewman, however,
Vrettakos was ineligible for adjustment of status; nor was any other form of
discretionary relief available. The Board concluded that “[h]ence, the grant of
nunc pro tunc permission [to reapply for admission] . . . would not in any way
affect his deportability, render him nondeportable, or permit termination of the
proceedings by allowing him to avail himself of discretionary relief from
deportation.” 

 (second emphasis added).
   The above-quoted language in Matter of Vrettakos, supra, suggests that
consideration of nunc pro tunc permission to enter is “appropriate and necessary for complete disposition” of a case whenever that step would make
available discretionary relief from deportation which could dispose of all
grounds for exclusion or deportation. In the instant case, nunc pro tunc permission to reapply for admission would permit termination of the proceedings by allowing the respondent to avail himself of section 212(c)
discretionary relief. Under the rationale of the cases discussed above, a grant
of nunc pro tunc relief in the instant case is “appropriate and necessary” to
completely dispose of the case.
    III. THE MAJORITY HAS MISCONSTRUED MATTER OF
                       VRETTAKOS
   The majority focuses upon language in Matter of Vrettakos, supra, specifying two situations which fit the criteria for nunc pro tunc permission to
reapply for admission and rules that these two examples are the only situations in which such permission may beconsidered.2 In light of the Board decisions cited above and the general rule articulated in Matter of Vrettakos, it is
clear that these two examples were not meant to be the only situations in
which nunc pro tunc permission could be considered.
  2 The Board provided the following examples: “(1) the sole ground of deportability is under

section 241(a)(1) of the Act, as an alien excludable at entry under section 212(a)(17) for
reentering the United States after deportation without first procuring the permission of the
Attorney General; or (2) who seemingly qualified for adjustment of status under section 245 of
the Act, except for his inadmissibility as an alien who was deported.” Matter of Vrettakos,
supra, at 600.

                                            263
Interim Decision #3268


   The majority mistakenly treats what were meant as examples of situations
in which nunc pro tunc relief could lead to complete disposition of the case as
the universe of situations in which nunc pro tunc relief may be afforded.
These two examples were repeated as dicta in three subsequent decisions by
the Board. Matter of Roman, 

 (BIA 1988); Matter of Ng, 

 (BIA 1979); Matter of Ducret, 

 (BIA 1976).
None of these cases held that these examples are the only situations in which
nunc pro tunc permission to reapply for admission is appropriate. Nor were
any of these cases dispositive of the issue currently before the Board.
   Matter of Ducret, supra, was a case in which the only ground for deportation was section 212(a)(17). This decision did not involve the combination
of nunc pro tunc relief with any other form of discretionary relief. Therefore,
the reference to the two examples in Matter of Vrettakos, supra, was unnecessary to the decision.
   Matter of Ng, supra, is completely distinguishable from the instant case.
The applicant in that case faced exclusion, not for having violated the
advance permission requirement of section 212(a)(17) of the Act, but for
having entered without proper documents under then section 212(a)(20). The
Immigration Judge found the alien deportable, but purported to grant the
applicant advance permission to reapply for admission following deportation. The Board found that such an anticipatory grant of permission to reapply was beyond the authority of the Immigration Judge. Since the issue of
exclusion under section 212(a)(17) was not before the Immigration Court, it
could not be resolved until the applicant was deported and reapplied for
admission. Nonetheless, in Matter of Ng the Board went on to repeat the two
examples cited in Matter of Vrettakos, supra, as examples of situations in
which nunc pro tunc relief could be granted.
IV. THE RESPONDENT DOES NOT SEEK TO “BOOTSTRAP”
   In Matter of Roman, supra, the Board considered whether nunc pro tunc
permission to reapply could be combined with discretionary relief under the
waiver pursuant to the former section 241(f) of the Act, 

(f)
(1988), for fraud or misrepresentation in gaining entry. The respondent in
Roman, however, was situated quite differently from the respondent in the
instant case. In Roman, the respondent entered not only without Attorney
General permission but by deliberately concealing his prior deportation.3 A
grant of nunc pro tunc permission to reapply would not have led to complete
disposition of the case since the respondent was not in possession of a valid
  3 Matter of Perez-Gonzalez, A72 149 152 (BIA Sept. 29, 1994), an unreported Board

decision referred to by the majority, also involved deliberate concealment of a prior conviction.
As the majority notes, the Immigration Judge found no evidence in the instant case of a
knowing, affirmative misrepresentation by the respondent in order to circumvent the need for
advance permission to reapply, and the respondent was not charged with deportability for fraud
or misrepresentation.

                                              264
                                                                     Interim Decision #3268


unexpired immigrant visa (having engaged in deliberate fraud and misrepresentation at time of entry by presenting an invalid Alien Registration Receipt
Card). Nunc pro tunc permission to reapply could not be granted independent of section 241(f) relief and section 241(f) relief could not be afforded
independent of nunc pro tunc permission to apply. Therefore, nunc pro tunc
permission to reapply would have accomplished nothing toward complete
disposition of the case without bootstrapping the section 241(f) waiver for
fraud into the determination of the nunc pro tunc issue. This bootstrapping
aspect of combining relief is what the Board found objectionable in Matter of
Roman, supra, where we stated: “We do not find that the respondent can
‘bootstrap’ eligibility from one waiver to the other where she is not separately eligible for either.” Id. at 860.
    On the other hand, the respondent in the instant case possessed valid entry
documents and, but for the failure to apply for advance permission to enter,
made a valid entry as a permanent resident. The grant of nunc pro tunc relief
in the instant case would cure not only the failure to seek advance permission,
but also any issue as to the validity of the entry documents stemming from
such failure. No bootstrapping is required, as it was in Matter of Roman,
supra, in regard to the question of valid entry documents. A grant of nunc pro
tunc relief in the instant case would afford the respondent the status of a lawfully admitted permanent resident eligible for section 212(c) relief.

   V. NUNC PRO TUNC CONSIDERATION IS CONSISTENT
          WITH RECENT BOARD PRECEDENTS
   In contrast to the majority’s narrow ruling on nunc pro tunc relief, I adopt
the approach initially formulated over 2 decades ago which permits nunc pro
tunc permission to reapply whenever that step would lead to the complete
disposition of the case by “allowing the [respondent] to avail himself of discretionary relief from deportation.” Matter of Vrettakos, supra, at 598. Such
an approach is consistent with the approach used in Matter of
Sosa-Hernandez, 

 (BIA 1993); Matter of Gabryelsky, 

 (BIA 1993); and Matter of Millard, 

 (BIA
1965). Each of these cases permits the combination of waiver applications in
one proceeding. I see no reason to preclude combination of nunc pro tunc
permission to reapply for admission with section 212(c) relief when such
relief would lead to the complete disposition of the case.4

   4 If the respondent is undeserving of either form of relief, it may certainly be denied in the

exercise of discretion at either step. That there is jurisdiction to entertain an application for
retroactive permission to reapply does not end the inquiry or conclude the proceedings,
“because a question as to the exercise of discretion remains. As with other forms of
discretionary relief, an alien respondent bears the burden of showing that he merits a favorable
exercise of discretion on an application for permission to reapply for admission. Evidence
indicating that a respondent would be otherwise deportable or inadmissible can be considered

                                              265
Interim Decision #3268


    The primary difference between this respondent and the many other section 212(c) applicants whose applications we consider on the merits is that
this respondent “self-deported” prior to appearing for his visa interview at the
United States consulate and did not inform the consul of his self-deportation
(assuming he was even aware that his departure was considered a “deportation”). I have difficulty concluding that this difference should preclude a full
consideration of the merits of the respondent’s section 212(c) application.
Cf. Yeung v. INS, 

 (11th Cir. 1995), modified, 

 (11th
Cir. 1996); Matter of Silva, 

 (BIA 1976) (cautioning that distinctions should be related to a legitimate governmental interest).
    Only a very few applicants may be affected by this decision, but it will
have a profound effect on those aliens. The respondent has resided in this
country as a permanent resident since the 1983 entry and has United States
citizen children. Nunc pro tunc relief in the instant case is certainly within
the authority of the Board and “appropriate and necessary” to the just disposition of the case.

                                  VI. CONCLUSION
   For the foregoing reasons, I would consider the respondent’s concurrent
applications for permission to reapply after deportation and section 212(c)
relief on the merits. Cf. Matter of Gabryelsky, supra. This action would completely dispose of the respondent’s case. I therefore respectfully dissent from
the majority’s holding that consideration of these combined forms of relief is
unavailable to this respondent.
DISSENTING OPINION: Lory D. Rosenberg, Board Member
    I respectfully dissent.
    I join fully with dissenting Board Member John W. Guendelsberger and
Chairman Paul W. Schmidt. Our authority to grant nunc pro tunc relief is
derived both from 

(d) (1995) and our own precedent cases and
is not in dispute. I agree that our consideration and grant of a request for permission to reapply for admission, nunc pro tunc, together with the consideration and grant of a waiver under section 212(c) of the Immigration and
Nationality Act, 

(c) (1994), would, for the reasons stated in
their dissent, dispose of the matter before us. Matter of Vrettakos, 

 (BIA 1974). Further, I agree that our decision in Matter of
Vrettakos specifically contemplates the exercise of our nunc pro tunc powers
in matters where discretionary relief is available and would allow us to dispose of the matter. I conclude, in agreement with the dissenting members,
that our concurrent consideration of requests for permission to reapply for
admission and for relief pursuant to section 212(c) of the Act in this case is
by the immigration judge on the question of discretion, even if the Service specifically declines
to charge the respondent in this regard.” Matter of Ducret, supra, at 622.

                                              266
                                                         Interim Decision #3268


“appropriate and necessary,” as it overcomes all the impediments to the
respondent’s continuing to remain with his wife and children in the United
States in lawful permanent resident status.
   I write separately only to articulate an additional point of dissent from the
position taken by the majority. In addition to those points raised and discussed by dissenting Board Member Guendelsberger and Chairman Schmidt,
my disagreement with the majority’s reasoning and conclusion is twofold.
   First, I believe that the majority has misconstrued our holding in Matter of
Sosa-Hernandez, 

 (BIA 1993). Second, I conclude that the
majority has departed from our holding in Matter of Sosa-Hernandez without
explanation or reason.
   In Matter of Sosa-Hernandez, supra, the Board found that a waiver of
deportability under former section 241(f) of the Act, 

(f)
(1988), now section 241(a)(1)(H) of the Act, 

(a)(1)(H)
(1994), waives “not only the exclusion ground, but also waives the underlying fraud.” 

; see also Matter of Manchisi, 

 (BIA
1967); Immigration and Naturalization Service Operations Instructions
318.5 (nondeportable alien under section 241(f) is cleared of illegality which
attached to his visa and entry). Rejecting the Immigration and Naturalization
Service’s argument that the respondent in Sosa-Hernandez was seeking to
“bootstrap” eligibility from one waiver to another in a fashion similar to that
addressed in Matter of Roman, 

 (BIA 1988), the Board concluded that Sosa-Hernandez was “separately eligible for a section 241(f)
waiver to waive deportability under section 241(a)(1) of the Act.” Matter of
Sosa-Hernandez, supra, at 763 (emphasis added). The Board reasoned there
that unlike the alien in Matter of Roman, the respondent was otherwise
admissible “at the time of entry” to the United States, but for reasons which
were the direct result of the respondent’s fraud or misrepresentation. Id. at
763. In that case, the respondent required a section 212(c) waiver on account
of a violation of the Act occurring almost a decade after the respondent’s
admission, albeit fraudulent at the time, to the United States. The Board held
that this fact pattern did not constitute the “bootstrapping” of waivers
disfavored in Roman and reasoned that concurrent applications for relief
would resolve the case and were permissible.
   The respondent in the case before us is “otherwise admissible,” but for
reasons which were a direct result of his failing to obtain advance permission
to reapply for admission before his lawful entry in 1983 as a permanent resident based upon his spouse’s petition. This respondent departed and was considered to have been deported “in pursuance of law” under section 101(g) of
the Act, 

(g) (1982). Consequently, he required permission to
reapply for admission under former section 212(a)(17) of the Act, 

(a)(17) (1982), and he is “separately eligible” for such relief. Unlike
the respondent in Matter of Sosa-Hernandez, supra, his entry was lawful and
not tarnished by fraud; he needed only permission to have undertaken his

                                      267
Interim Decision #3268


lawful entry before the passage of the 5-year bar to admission which attached
as the result of his prior deportation. Like the respondent in Sosa-Hernandez,
he requires a section 212(c) waiver as the result of acts occurring sometime
after his entry as a lawful permanent resident.
    In Sosa-Hernandez, we concluded that “the immigration judge’s grant of a
section 241(f) waiver to the respondent retroactively validated the lawful
permanent resident status” accorded him in 1974. Matter of Sosa-Hernandez,
supra, at 763. In this case, a grant of permission to reapply would retroactively, or nunc pro tunc, validate the respondent’s lawful permanent resident
status.
    I can see no meaningful difference, nor has the majority identified one,
between the analysis in that case and a consistent analysis in this one. Nor has
the majority offered any rationale distinguishing or explaining why a retroactive grant of section 241(f) relief to overcome a fraudulent entry should be
treated as more justified or justifiable than a nunc pro tunc grant of permission to reapply for admission to overcome a prior deportation. In one case the
retroactive waiver is “forgiving” the fraud surrounding the entry itself which
was unlawful; in the other, the nunc pro tunc “permission” is removing the
bar of a prior deportation from an entry which is otherwise lawful. Each situation is similarly distinguishable from that in Matter of Roman, supra, in
which there existed two threshhold impediments to the lawfulness of the initial entry, and, therefore, permission to reapply and a section 241(f) waiver
were required and had to be sought together solely to validate the respondent’s status as a lawful permanent resident.
    In my view, our decision in Matter of Sosa-Hernandez allows concurrent
applications for relief from deportation in situations such as this one, in
which the grant of an application relates back to render an earlier entry as a
lawful permanent resident a lawful one, thus making a respondent having 7
years of lawful unrelinquished domicile eligible to apply for section 212(c)
relief. Such reasoning has been committed to precedent and I would find it to
be controlling here. Our determination in this case should be no different
from that in Matter of Sosa-Hernandez. Consequently, I would conclude that
a grant of nunc pro tunc permission to reapply is appropriate, necessary, and
warranted.




                                      268