Matter of Granados
| Decision Date | 26 April 1979 |
| Docket Number | Interim Decision Number 2701,A-14103418 |
| Citation | 16 I&N Dec. 726 |
| Parties | MATTER OF GRANADOS In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from the June 12, 1978, decision by the immigration judge denying his motion to reopen the deportation proceedings in order to apply for relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c). The appeal will be dismissed because we agree with the immigration judge's conclusion that section 212(c) of the Act is ineffective to remove the basis for the respondent's deportability.
The respondent is a native and citizen of Mexico who was admitted as a lawful permanent resident of the United States on August 28, 1965. On October 18, 1976, he was convicted in the United States District Court for the Eastern District of Washington for possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. 5861(d), 5871. Consequently, he was found deportable on January 12, 1978, under section 241(a)(14) of the Act, 8 U.S.C. 1251(a)(14). On May 5, 1978, we dismissed an appeal from the deportability decision as untimely. He then submitted on May 20, 1978, a motion to reopen the deportation proceedings and a request for a stay of deportation which the immigration judge denied on June 12, 1978. We agree with the immigration judge that he had jurisdiction to entertain the motion to reopen. Matter of Mladineo, 14 I. & N. Dec. 591 (BIA 1974).
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 seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1) through (25) and paragraphs (30) and (31) of subsection (a) of section 212. That section was enacted in 19521 to replace the seventh proviso to section 3 of the Immigration Act of 1917.2 Twice we examined the newly enacted section and concluded that section 212(c), unlike the seventh proviso it replaced, was not a general form of discretionary relief but instead was confined to the grounds of inadmissibility enumerated therein. See Matter of M-, 5 I. & N. Dec. 642 (BIA 1954); Matter of T-, 5 I. & N. Dec. 389 (BIA 1953).
The scope of permissible discretion under section 212(c) was expanded by the decision of the United States Court of Appeals for the Second Circuit in Francis v. INS, 532 F.2d 268 (2 Cir.1976). In Francis, the Second Circuit Court of Appeals held that the provisions of section 212(c) are applicable not only to permanent resident aliens 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, but that such provisions are also applicable to non-departing permanent resident aliens. The rationale for the Francis decision was that to provide for section 212(c) relief to deportable aliens returning from abroad but not for aliens similarly situated who had not departed from the United States would constitute an unconstitutional classification inconsistent with due process. 532 F.2d at 272-273. Francis expanded the class of aliens to whom section 212(c) relief is available but did not increase the statutory grounds to which section 212(c) relief may be applied.
In Matter of Silva, Interim Decision 2532 (BIA 1976), we adopted the holding of the Francis court and concluded that section 212(c) permits a waiver of a ground of inadmissibility to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the act or acts which render him deportable. Therefore, if a ground of deportation is also a ground of inadmissibility, section 212(c) can be invoked in a deportation hearing. Cf. Matter of Hom, Interim Decision 2557 (BIA 1977); Matter of Tanori, Interim Decision 2467 (BIA 1976).3
In the present case, however, the respondent seeks the expansion of section 212(c) relief to a ground of deportation which is not a ground of excludability listed under section 212(a) of the Act. Conviction for possession of a concealed sawed-off shotgun is not a specified section 212(a) ground of excludability, nor a crime involving moral turpitude that would render the respondent excludable under section 212(a)(9) of the Act. See U.S. ex....
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