Matter of Gabryelsky
| Decision Date | 03 November 1993 |
| Docket Number | A-13960837,Interim Decision Number 3213 |
| Citation | 20 I&N Dec. 750 |
| Parties | MATTER OF GABRYELSKY In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has appealed from the decision of the immigration judge dated February 5, 1993, finding the respondent deportable as charged, denying his requests for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (1988), and a waiver of inadmissibility under section 212(c) of the Act 8 U.S.C. § 1182(c) (Supp. IV 1992), and ordering him deported from the United States. The appeal will be sustained.
The respondent is a native and citizen of Poland,1 who was admitted to the United States at New York, New York, on December 20, 1965, as a refugee when he was 14 years old. His status was adjusted to that of a lawful permanent resident on March 26, 1968. On November 14, 1988, he was convicted in the Superior Court of California, Tehama County, of possession of a firearm, a machine gun, and possession of a silencer in violation of sections 12220, 12500, and 12520 of the California Penal Code. Also on that date and in that court, the respondent was convicted of the offense of manufacture of a controlled substance, methamphetamine, in violation of section 11379.6 of the California Health and Safety Code. Although he was sentenced to 5 years of imprisonment for the controlled substance violation and 8 months each for the weapons violations, the respondent served less than 5 years of imprisonment for his convictions. In addition, the respondent indicated in his application for adjustment of status that he was also convicted of malicious mischief, and of driving under the influence on two occasions.
At his hearing before the immigration judge, the respondent requested the opportunity to apply for adjustment of status under section 245 of the Act in conjunction with a waiver of inadmissibility under section 212(c) of the Act. The immigration judge denied his requests, reasoning that the respondent was not separately eligible for adjustment of status and section 212(c) relief, and he could not "bootstrap" eligibility from one form of relief to the other. On appeal, the respondent argues that the immigration judge erred by denying his request for adjustment of status in conjunction with the application for section 212(c) relief. The respondent claims the immigration judge improperly determined that he was statutorily ineligible for adjustment of status and section 212(c) relief.
Based on the respondent's admissions at his hearing and the records pertaining to his convictions that were presented by the Service, we agree that deportability has been established by the clear, unequivocal, and convincing evidence required by Woodby v. INS, 276 U.S. 385 (1966), and 8 C.F.R. § 242.14(a) (1993) to support the order of deportation.
We reject the respondent's claim that the immigration judge erred in ordering him deported while his petition for habeas corpus is pending in the United States District Court for the Eastern District of California. The fact that the respondent may be attempting to collaterally attack his convictions does not affect his present deportability. See generally Matter of Khalik, 17 I&N Dec. 518 (BIA 1980); Matter of Fortis, 14 I&N Dec. 576 (BIA 1974); Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970). An alien cannot collaterally attack the legitimacy of a criminal conviction in a deportation or exclusion proceeding. See Trench v. INS, 783 F.2d 181 (10th Cir. 1986); Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981). The pendency of post-conviction motions or other forms of collateral attack, not constituting direct appeals, do not serve to negate the finality of the conviction or the charge of deportability, unless and until the conviction has been overturned pursuant to such a motion. Okabe v. INS, 671 F.2d 863 (5th Cir. 1982); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976). We therefore conclude that the respondent's convictions are final and fully sustain the charges of deportability.
We find merit however to the respondent's assertion that the immigration judge erred in finding the respondent ineligible for adjustment of status and in concluding he could not combine the remedies of adjustment of status and section 212(c) of the Act. The respondent should have been allowed to apply for adjustment of status under section 245(a) of the Act, since he is statutorily eligible for that relief.2 Section 245(a) of the Act provides for the adjustment of status, in the discretion of the Attorney General, of an alien who was inspected and admitted or paroled into the United States if: (1) the alien makes an application for adjustment, (2) an immigrant visa is immediately available to him at the time his application is filed, and (3) the alien is eligible to receive an immigrant visa and is admissible for permanent residence.
The record reflects that the respondent was admitted to this country in 1965, and with respect to the first prerequisite, he has submitted an Application for Permanent Residence (Form I-485). Concerning the second requirement, the respondent's evidence, i.e., his Petition to Classify Status of Alien for Issuance of Immigrant Visa (Form I-130) and Application for Advance Permission to Return to Unrelinquished Domicile (Form I-191), indicate that he is the unmarried son of a United States citizen. He thus falls within the first-preference family visa category. See section 203(a)(1) of the Act, 8 U.S.C. § 1153(a)(1) (Supp. IV 1992). A visa petition filed on his behalf has been approved, and an immigrant visa would be immediately available to him, since first-preference visa numbers are now current. See Department of State Visa Bulletin, Vol. VII, No. 26 (Aug. 1993); see also Matter of Rainford, 20 I&N Dec. 598. (BIA 1992).
In regard to the third statutory requirement, we point out that while the respondent's conviction for possession of a firearm establishes his deportability under section 241(a)(2)(C) of the Act, see Matter of Chow, 20 I&N Dec. 647 (BIA 1993), aff'd, 12 F.3d 34 (5th Cir. 1993), it does not render him inadmissible for purposes of section 245 adjustment, as there is no corresponding exclusion ground. In Matter of Rainford, supra, the Board specifically held that a conviction for criminal possession of a weapon did not preclude a finding of admissibility in connection with an application for adjustment of status under section 245 of the Act, because it is not a ground of excludability. Further, although the respondent's controlled substance conviction does render him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, he may utilize section 212(c) of the Act for the limited purpose of waiving this ground. See generally Matter of Hernandez-Casillas, 20 I&N Dec. 262, at 284 n. 6 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993).
Section 212(c) of the Act provides 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 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds of exclusion enumerated in section 212(a) of the Act. The respondent is statutorily eligible to apply for this waiver insofar as he is a lawful permanent resident who apparently has maintained a lawful unrelinquished domicile in this country for 7 consecutive years. See section 212(c) of the Act; Matter of Edwards, 20 I&N Dec. 191, 194-95 (BIA 1990).
Although the statute describes a waiver under section 212(c) of the Act which is available to aliens seeking to eliminate a ground of inadmissibility upon application to enter the United States, it has been interpreted to include availability for relief in deportation proceedings as well where the alien has not departed from the United States subsequent to the acts that rendered him excludable. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980); Matter of Hom, 16 I&N Dec. 112 (BIA 1977), modified, Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Silva, 16 I&N Dec. 26 (BIA 1976); see also Matter of Hernandez-Casillas, supra.
The immigration judge properly determined that the respondent could not use section 212(c) of the Act to waive deportability for his firearms conviction. An alien deportable on the basis of a firearms...
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