Matter of Arias-Uribe
| Decision Date | 30 April 1971 |
| Docket Number | A-8760789,Interim Decision Number 2082 |
| Citation | 13 I&N Dec. 696 |
| Parties | MATTER OF ARIAS-URIBE In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent, a native and citizen of Mexico, concedes that he is deportable under section 241(a)(11) of the Immigration and Nationality Act as an alien convicted for possession of heroin in violation of section 11500 of the California Health and Safety Code. His appeal is directed to the denial of an application for advance permission to return to an unrelinquished domicile of seven consecutive years pursuant to the provisions of section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c).
The respondent, a married male alien, 23 years of age, was admitted to the United States for permanent residence on October 11, 1954. He was convicted in the Superior Court of the State of California for the County of Los Angeles for possession of heroin on January 13, 1969 and granted five years' probation on condition that he spend the first 90 days in jail. He was released from the county jail on April 15, 1969. He testified that his only departure from the United States since his original admission for permanent residence occurred in either 1958 or 1959.
The issue presented by the case is whether a lawful permanent resident for more than seven years, who was convicted of possession of heroin in the United States after entry and, therefore, deportable under section 241(a)(11) of the Immigration and Nationality Act, is statutorily eligible for discretionary relief under section 212(c) of the Act in a deportation proceeding. The special inquiry officer concludes that the respondent is not statutorily eligible for the relief requested because since his conviction he is not an alien returning to the United States to resume a lawful domicile of seven consecutive years as required by section 212(c) of the Act.
Counsel maintains that the respondent is statutorily eligible for relief from deportation pursuant to section 212(c) of the Act. Section 212(c) provides in substance 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 seven consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds for exclusion enumerated in section 212(a) of the Act, including an alien convicted of a narcotic violation as set forth in section 212(a)(23). Counsel argues that present administrative practice, as well as tacit Congressional approval, permits an alien in a deportation proceeding to seek relief under section 212(c), notwithstanding the language of the statue which limits the relief to an alien who "temporarily proceeded abroad voluntarily and not under an order of deportation, and who [is] returning to a lawfully unrelinquished domicile of seven consecutive years."
Counsel cites several reported decisions of this Board in support of his argument.1 The cited cases are distinguishable from the case before us. Our grant of relief under section 212(c) in Matter of S---- and Matter of G---- A----, supra, footnote 1 amounted to a nunc pro tunc correction of a record of entry to avoid deportation. The aliens in both cases were statutorily eligible for section 212(c) relief in that they had been lawfully admitted for permanent residence, their deportability stemmed from grounds of inadmissibility which arose prior to their voluntary, temporary departure not under an order of deportation and they were returning at the time of their last entry to an unrelinquished domicile of seven consecutive years. Our action in both cases was in accordance with long-established administrative practice which had its origin in an opinion by the Attorney General that relief under the 7th Proviso to section 3 of the 1917 Act, the predecessor of section 212(c), was available in deportation proceedings as well as exclusion proceedings, provided the alien came within the terms of the statute, Matter of L----, 1 I. & N. Dec. 1, 6 (A.G., 1940). The respondent in the instant case has had no entry preceded by a voluntary, temporary departure since he became deportable under section 241(a)(11) of the Act by reason of his conviction as a narcotic violator in January of 1969.
Counsel also maintains that the technical objection to the availability of section 212(c) relief, to wit, that the respondent as a lawful resident is not "returning to the United States" following a temporary, voluntary absence was overruled in Matter of Smith, 11 I. & N. Dec. 325 (BIA, 1965). We do not agree. The Smith case was concerned with an application for adjustment of status under section 245 of the Immigration and Nationality Act which was submitted during the deportation proceeding accorded him on December 8, 1964. The order to show cause charged deportability under section 241(a)(4) as an alien who, after entry, had been convicted of two crimes involving moral turpitude. It was stated for the record that the applicant would apply for an exercise of the discretion contained in section 212(c) in connection with his application for adjustment of status under section 245. The special inquiry officer adjourned the hearing without decision for the conduct of an investigation by the Immigration and Naturalization Service in connection...
To continue reading
Request your trial