Matter of Edwards
| Decision Date | 09 March 1964 |
| Docket Number | Interim Decision Number 1333,A-11707325 |
| Citation | 10 I&N Dec. 506 |
| Parties | MATTER OF EDWARDS In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
Respondent is male, married and 54 years old. He was admitted to the United States for permanent residence on July 4, 1916, at the age of 7 years, accompanied by his mother, father, one brother (Antonios), and one sister (Besine). Respondent was last admitted on June 12, 1962, from Canada on a claim of United States citizenship following a visit of a few hours to attend a funeral. The special inquiry officer found that the record establishes that respondent was born in Canada, that he is an alien, and that he is deportable on the charge stated above, conviction of two crimes involving moral turpitude after entry, not arising out of a single scheme of criminal misconduct.
There was an issue regarding respondent's claim of United States citizenship, which was resolved against him by the special inquiry officer. Four exhibits relating to respondent's place of birth are in the record. Exhibit 7 is his birth registration, naming the parents, and the fact that they were married in Lebanon. It omits the place of the child's birth but the special inquiry officer believed that the registration would not have been made where it was if the child had been born outside the country. Other answers given on the registration form seem to assume birth in the home, and the mother, "Lizzie Edwards", gave and certified the information. Exhibit 8 is a photostatic copy of the naturalization application of respondent's mother, listing the names and places of birth of each of her children, including respondent. The mother is the best witness to the place of the child's birth, and she states that he was born in Canada on October 27, 1908. His baptismal certificate from St. Philips Church, Petrolia, Ontario, omits to state the place of his birth but shows his baptism on December 30, 1908, at Petrolia, Ontario. Exhibit 10 is the record of lawful admission Form I-404A of respondent, showing his entry at Detroit, Michigan, on July 4, 1916, with his parents and a brother and sister, Antonios and Besine. This record states that respondent's place of birth was Petrolia, Ontario, Canada. It shows further that one sister, Monzar (Monze), was already in Detroit. There is no record of the entrance or place of residence at that time of James. Two other children were born to respondent's parents in Detroit at later dates. The Board finds on the basis of these exhibits and the entire record that respondent was born in Canada at Petrolia, Ontario, on October 27, 1908.
Respondent was convicted on a plea of guilty in 1939 of breaking and entering in the nighttime with intent to commit larceny. He was placed on probation for 4 years and ordered to make restitution of $225. The record discloses that on November 24, 1943, respondent had paid only $66 of the restitution and that he was before the court on a violation of probation warrant. His probation officer stated that the complainant would accept $50 in full payment of the remaining restitution owed. Exhibit 12 shows that on April 15, 1942, respondent was discharged to join the Army.
Respondent was arrested for larceny by conversion and obtaining money under false pretenses. He was convicted on the larceny charge on October 5, 1961, and placed on probation for 3 years, charged $75 costs and ordered to make $450 restitution. Respondent was engaged in operating a business of selling freezers and a food plan. He testified that he had a number of salesmen in his employ, and that his difficulties came about because many of the purchasers abandoned their payments. Respondent's reserves with the bank were not sufficient to cover the losses.
The special inquiry officer granted respondent adjustment of status under section 249 of the Immigration and Nationality Act, ordering that a record of lawful admission for permanent residence be made as of July 4, 1916, and that these proceedings be terminated. In connection with this adjustment of status it was necessary to grant respondent a waiver of excludability under section 212(g) of the Immigration and Nationality Act because of respondent's inadmissibility for conviction of the 2 crimes set forth above. The Immigration and Naturalization Service appeals from this order, contending that section 249 is not approropriate under these circumstances, and that the waiver under section 212(g) should not be granted respondent, because it should be unconditional, not subject to conditions and revocations attached thereto by the special inquiry officer. The Service contends further that respondent has not established the good moral character required of an applicant for adjustment under section 249, and that his deportation would not result in extreme hardship to his United States citizen spouse. The order of the special inquiry officer of March 20, 1963, will be withdrawn, but these proceedings will be terminated under section 212(c)1 of the Immigration and Nationality Act.
In granting respondent's application for registry under section 249 of the Immigration and Nationality Act, although there is a record of his lawful admission for permanent residence, the special inquiry officer followed Matter of R----, 8 I. & N. Dec. 598 (Ass't. Comm., March 9, 1960), wherein the Assistant Commissioner held that a prior record of lawful admission for permanent residence does not preclude adjustment of status under section 249, where the alien's immigration status later became unlawful as the result of illegal entry. The special inquiry officer quoted the Assistant Commissioner's statement that "a subsequent illegal entry vitiates the prior record of lawful admission, and if the alien is otherwise eligible, he may be granted the benefits of section 249". We have held to the contrary in several decisions since Matter of R----. In Matter of M---- P----, 9 I. & N. Dec. 747 (BIA, June 21, 1962), we held that an alien whose original entry was for "lawful permanent residence" has not "changed his status" under section 101 (a) (20) of the Immigration and Nationality Act2 by having become excludable or deportable. We found that the record of his admission for lawful permanent residence is available within the meaning of section 249, that any other interpretation "would render ineffective any waivers of inadmissibility now provided by the immigration laws."
In Matter of Preciado-Castillo, Int. Dec. No. 1230 (BIA, July 6, 1962), we found that registry under section 249 is not available for an alien who was admitted for permanent residence and who subsequently became deportable for causes arising after entry. We stated that section 249 was not available to Preciado, for the reasons that there existed "a record of lawful entry which has not been vitiated by the respondent's subsequent deportability on criminal grounds".
In Matter of Da Silva, Int. Dec. No. 1268 (BIA, February 21, 1963), the Board held that an alien lawfully admitted to the United States for permanent residence, who subsequently became deportable because of convictions of crimes involving moral turpitude, is statutorily ineligible for adjustment of status under section 245 of the Immigration and Nationality Act, as amended. In that decision we drew an analogy between adjustment under section 249 and under section 245. We pointed out that if the interpretation of the special inquiry officer were permitted (granting adjustment under section 245 in these circumstances), section 244 (a) (5) suspension of deportation would be abandoned. We concluded that Congress did not eliminate section 244 (a) (5), with its more rigorous requirements, and did not, therefore, intend section 245 to have as broad an application as the special inquiry officer's interpretation. We said "it seems clear than section 245 was intended to perform no other function than to permit nonimmigrants to obtain permanent residence status without leaving the United States." The Board concludes in the instant case that Edwards' 1960 entry cannot be used as the basis for a grant of section 249 relief from deportation.
The Board will exercise the discretion contained in section 212(c) of the Immigration and Nationality Act in the alien's behalf. The authority of the Board to grant this form of relief from deportation under the present circumstances was considered in Matter of S----, 6 I. & N. Dec. 392 (BIA, November 24, 1954; Atty. Gen., March 15, 1955), which is similar to the instant case. The reasoning of that decision disposes of most of the issues here. S---- had the advantage that he had no arrests or convictions for crime of any kind in the United States in the ten-year period preceding the decision.
Section 212 (c) of the Immigration and Nationality Act requires...
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