AZURIN

Cite as 

 (BIA 2005)                                 Interim Decision #3505




                 In re Greg Fabian AZURIN, Respondent
                           File A37 547 358 - San Diego
                               Decided March 9, 2005
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

   An alien who, prior to the 1996 amendments made to former section 212(c) of the
Immigration and Nationality Act, 

(c) (1994), pled guilty to an offense that
rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as
well as removable based on his conviction for an aggravated felony and a firearms offense,
may seek a waiver of his inadmissibility under section 212(c) in conjunction with an
application for adjustment of status, despite regulatory changes relating to the availability
of section 212(c) relief. Matter of Gabryelsky, 

 (BIA 1993), reaffirmed.
FOR RESPONDENT: Murray D. Hilts, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jesus Clemente, Assistant
District Counsel
BEFORE: Board Panel: FILPPU, HESS, and PAULEY, Board Members.
PAULEY, Board Member:

   This matter was last before us on January 28, 2003, when we remanded the
record to the Immigration Court to allow the respondent to apply concurrently
for adjustment of status and a waiver of inadmissibility under former section
212(c) of the Immigration and Nationality Act, 

(c) (1994).1
The Immigration Judge has certified this case back to us. The record will
again be remanded to the Immigration Court.
   The respondent was convicted on March 12, 1990, of shooting at an
occupied motor vehicle in violation of California law. On the basis of this
conviction, he was charged in 1998 with removability as an alien convicted
of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 

(a)(2)(A)(iii) (Supp. IV 1998). Subsequently, a charge was lodged that
he was also removable under section 237(a)(2)(C) because his conviction was
for a firearms offense as well. Neither of these grounds of removability has
a corresponding ground of inadmissibility.
1
  The respondent is the beneficiary of an approved visa petition filed by his United States
citizen spouse.


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Cite as 

 (BIA 2005)                                  Interim Decision #3505



   In his decision, the Immigration Judge implied that the respondent was
ineligible for a waiver under former section 212(c) of the Act because his
conviction was for an offense that rendered him removable on grounds that
lacked a comparable ground of inadmissibility. We held in Matter of
Rainford, 

 (BIA 1992), that a conviction for an offense that
rendered the alien deportable did not preclude a showing of admissibility for
purposes of an application for adjustment of status where there was no
corresponding ground of inadmissibility for the crime in the statute.
Therefore, the respondent does not need section 212(c) relief to waive either
the firearms or aggravated felony charges in order to adjust his status.
Nevertheless, he does require a section 212(c) waiver in conjunction with his
adjustment application because his offense also constitutes a crime involving
moral turpitude, which would render him inadmissible.2
   In INS v. St. Cyr, 

 (2001), the United States Supreme Court
determined that restrictions on the availability of section 212(c) relief do not
apply retroactively to aliens who pled guilty prior to the April 24, 1996,
effective date of the Antiterrorism and Effective Death Penalty Act of 1996,

 Stat. 1214 (“AEDPA”). The respondent pled guilty
and was convicted prior to the enactment of that statute. Hence, in accordance
with the Supreme Court’s St. Cyr ruling, the respondent is not ineligible for
a waiver as a result of the AEDPA amendments. See also Drax v. Reno,

 (2d Cir. 2003).
   Nor is the respondent ineligible for section 212(c) relief on the basis of the
newly promulgated regulations addressing such relief. Executive Office for
Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal
Convictions Before April 1, 1997, 

 (Sept. 28, 2004) (to
be codified at 

) (effective Oct. 28, 2004). Among the new
regulations is a provision titled “Limitations on discretion to grant an
application under section 212(c) of the Act,” which states as follows:



2
   We note that in the absence of an application for adjustment of status, the respondent
would not be able to employ section 212(c) to waive the firearms and aggravated felony
grounds of removability charged against him because they have no comparable grounds of
inadmissibility. See Matter of Montenegro, 

 (BIA 1992); see also Matter
of Gabryelsky, 

 (BIA 1993) (stating that “this Board [has] 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 . . . .”);
Matter of Wadud, 

 (BIA 1984); Matter of Granados, 

(BIA 1979). Section 212(c) relief is available to waive the respondent’s offense only in
conjunction with an application for adjustment of status and to the extent that his conviction
would otherwise render him ineligible to adjust on the ground that he is inadmissible as an
alien convicted of a crime involving moral turpitude.

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 (BIA 2005)                                 Interim Decision #3505



    An application for relief under former section 212(c) of the Act shall be denied if:
       ...
       (5) The alien is deportable under former section 241 of the Act or removable under
    section 237 of the Act on a ground which does not have a statutory counterpart in section
    212 of the Act.

69 Fed. Reg. at 57, 835 (to be codified at 

(f)(5)).
   As previously noted, the respondent’s offense is one that does not have a
statutory counterpart in section 212(a) of the Act. Thus, the new regulation
could be read to mandate a denial of section 212(c) relief. However, we do
not believe that the regulation was intended to bar section 212(c) relief in the
instant context, and we therefore decline to construe it in that fashion.
   The purpose of the new regulation appears simply to be to codify the
holdings in Matter of Hernandez-Casillas, 

 (A.G. 1991; BIA
1990), and Matter of Granados, 

 (BIA 1979). See 69 Fed.
Reg. at 57,831-32 (noting those cases in explaining that the regulation makes
section 212(c) unavailable to waive a ground of deportability or removability
if there is no corresponding ground of inadmissibility); see also Matter of
Montenegro, 

 (BIA 1992). Our ruling in Matter of
Gabryelsky, 

 (BIA 1993), relies on those cases in
recognizing that section 212(c) relief is not available to waive a ground of
deportability or removability that has no analogous ground of inadmissibility
in section 212(a) of the Act. Thus, Matter of Gabryelsky is entirely consistent
with the case law underpinning this new regulation. Furthermore, nothing in
the context of the regulation or the accompanying commentary indicates that
it was intended to overrule the well-established rule in that case that an alien
may seek section 212(c) relief, in conjunction with an application for
adjustment of status, to waive a ground of inadmissibility that would
otherwise bar the alien from establishing eligibility to adjust his or her status.3
Consequently, we hold that the new regulation does not make the respondent
ineligible for section 212(c) relief to the extent that he seeks a waiver, in
conjunction with an application for adjustment of status, for an offense that
would render him inadmissible under section 212(a).
   Lastly, we must address the Immigration Judge’s suggestion that as a result
of other regulatory changes, the respondent can no longer rely on Matter of
Gabryelsky, supra, in applying for adjustment of status in conjunction with a
waiver of inadmissibility under former section 212(c) of the Act. In Matter
of Gabryelsky, we relied on 

(e) (1993) (subsequently
redesignated as 

(f) (1994)), which specifically stated that an
applicant for adjustment could apply for benefits provided in section 212(c)

3
  Matter of Gabryelsky, supra, held that a lawful permanent resident who was deportable
for both drug and weapons offenses could concurrently apply for adjustment of status to
overcome his weapons conviction and for section 212(c) relief to waive his drug conviction,
which would otherwise render him inadmissible.

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 (BIA 2005)                                 Interim Decision #3505



of the Act. As pointed out by the Immigration Judge, this language was
eliminated from the regulations, effective April 1, 1997. See Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 

, 10,383
(Mar. 6, 1997); see also 

(f) (2004). However, that regulatory
change does not currently preclude the respondent from combining the section
212(c) waiver with an adjustment application.
   The regulation at 

(e) was not the exclusive basis for our
reasoning in Gabryelsky. We also relied on language in former 

(a) (1993). Matter of Gabryelsky, supra, at 754. That language still
exists in the current version of the regulation and provides as follows:
  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 that he or she meets the
  eligibility requirements for a waiver of the ground of inadmissibility, he or she may apply
  to the immigration judge for such waiver.

(a) (2004). This regulation clearly indicates that the
various waivers of inadmissibility are intended to accompany an adjustment
application. Moreover, we had approved the practice of combining a section
212(c) waiver with an adjustment application before the language regarding
section 212(c) was inserted into former 

(e). See Matter of
Smith, 

 (BIA 1965) (noting that an applicant for adjustment
of status in the United States, who is subject to all grounds of inadmissibility,
is “assimilated” to the position of someone applying to enter this country as
a lawful permanent resident and therefore should not be treated differently
from someone seeking admission at the border).
   Because the language of 

(f) was altered in conjunction
with the enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 

 Stat. 3009-546
(“IIRIRA”), the deletion of any reference to section 212(c) appears to be of
a conforming nature, in line with the understanding that the IIRIRA had
retroactively repealed that form of relief. IIRIRA § 304(b), 110 Stat. at
3009-597. As previously noted, however, the Supreme Court subsequently
held that certain aliens who pled guilty to a crime before the 1996
amendments to section 212(c) could still seek relief under that section, as they
would have detrimentally relied on its availability at the time of their pleas.
See INS v. St. 

 Thus, while the regulation’s elimination of any
reference to section 212(c) would have been prudent at the time of the
IIRIRA’s enactment, it would be contrary to the holding of St. Cyr to refuse
to allow otherwise eligible aliens to seek a waiver in conjunction with an
adjustment application solely because the specific regulatory language
authorizing that form of relief has been deleted. Accordingly, we hold that


                                           698
Cite as 

 (BIA 2005)                      Interim Decision #3505



Matter of Gabryelsky, supra, has not been overruled as a result of the
alteration of 

(f), and we reaffirm our decision in that case.
   Based on the foregoing, we conclude that the respondent should be
permitted to submit his section 212(c) waiver request with his application for
adjustment of status. The record will therefore be remanded to the
Immigration Judge.
   ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion, and for the entry of a new
decision.




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