Matter of Hernandez-Casillas
| Decision Date | 18 March 1991 |
| Docket Number | A-17963863.,Interim Decision Number 3147 |
| Parties | MATTER OF HERNANDEZ-CASILLAS. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
BY: Milhollan, Chairman; Dunne, Board Member. Concurring Opinion: Heilman, Board Member. Dissenting Opinion: Vacca and Morris, Board Members.
BEFORE THE BOARD
(January 11, 1990)
In a decision dated March 14, 1986, an immigration judge found the respondent deportable as charged, denied his motion to terminate proceedings, denied his application for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), and denied his application for voluntary departure. The respondent was ordered deported from the United States to Mexico. The respondent has appealed. The appeal will be sustained and the record will be remanded to the immigration judge.
The respondent is a 33-year-old native and citizen of Mexico who was admitted to the United States on July 4, 1967, as a lawful permanent resident. On April 13, 1985, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued against the respondent, alleging that he had entered the United States near Del Rio, Texas, on or about April 13, 1985, without being inspected by an immigration officer. He was charged with deportability under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1982).
At his March 14, 1986, deportation hearing, the respondent, through counsel, denied the allegations in the Order to Show Cause and denied deportability. The Immigration and Naturalization Service introduced into evidence a certified conviction record. The conviction record includes a complaint that the respondent knowingly and willfully entered the United States at a time and place other than as designated by immigration officers. The complaint further states that the respondent was observed entering the United States by Border Patrol Agents at a point near Del Rio, Texas, by wading the Rio Grande River, and that he was guiding across the river a group of illegal aliens whom he planned to transport to the Austin, Texas, area for a fee of approximately $1,000. The respondent was convicted on his plea of guilty of the offense of entering the United States at a time and place other than as designated by immigration officers. He admitted at the hearing that the conviction record related to him.
At the hearing, the respondent made a motion to terminate his deportation proceedings on the ground that the Service violated Immigration and Naturalization Service Operations Instructions 242.1a(13) by not including an averment on the Order to Show Cause that the respondent was admitted as an immigrant and has not abandoned his residence.1 This motion was denied by the immigration judge.2 The respondent then applied for a waiver of inadmissibility pursuant to section 212(c) of the Act. An Application for Advance Permission to Return to Unrelinquished Domicile (Form I-191) and supporting documents were introduced into evidence. The respondent made an offer of proof of the testimony he and his wife would give in support of the application. The offer of proof essentially stated that the respondent had been a lawful permanent resident since 1967 and that his United States citizen wife and children would suffer hardship should he be deported.
The immigration judge denied the application for a section 212(c) waiver on the ground that this relief is not available to an alien who is deportable under section 241(a)(2) of the Act for having entered the United States without inspection.
On appeal, the respondent has not challenged his deportability on the entry without inspection charge. However, he does argue that the deportation proceedings should have been terminated because of the violation of Operations Instructions 242.1a(13). We disagree. To begin with, Operations Instructions generally do not have the force of law. They furnish only general guidance for Service employees and do not confer substantive rights or provide procedures upon which an alien may rely. Ponce-Gonzalez v. INS, 775 F.2d 1342 (5th Cir. 1985); Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981); Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980). Moreover, the respondent suffered no harm from the omission on the Order to Show Cause. See, e.g., Nicholas v. INS, supra; Matter of Santos, 19 I&N Dec. 105 (BIA 1984). It was never disputed that the respondent was a longtime lawful permanent resident of the United States.
The respondent's primary contention on appeal is that he is eligible for section 212(c) relief. The respondent asserts, as he did during the proceedings below, that the Service should lodge a charge against him under section 241(a)(13) of the Act, relating to the smuggling of aliens for gain. Since section 241(a)(13) has a corresponding exclusion ground (section 212(a)(31) of the Act), it is argued that the respondent would be eligible for section 212(c) relief if the additional charge is made. The respondent cites the case of Marti-Xiques v. INS, 713 F.2d 1511 (11th Cir. 1983), vacated on rehearing, 724 F.2d 1463 (11th Cir.), decided on other grounds, 741 F.2d 350 (11th Cir. 1984), for the proposition that where a respondent is deportable under two grounds arising out of the same incident, section 212(c) permits waiver of an unenumerated ground if a more serious ground is an enumerated ground for the waiver. Finally, the respondent contends that the statute as construed by the immigration judge is unconstitutional and violates the respondent's equal protection rights.
This case affords us an opportunity to address the issue of the availability of section 212(c) to aliens who have been charged with deportability under section 241(a)(2) for entry without inspection, and to other aliens deportable under certain other grounds. At present, a section 212(c) waiver is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of exclusion. Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980); see also Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Salmon, 16 I&N Dec. 734 (BIA 1978). This limitation can result in the total unavailability of relief from deportation for longtime resident aliens who, like the present respondent, may not have committed offenses nearly as serious as those of other aliens who are eligible for the section 212(c) waiver. In order to remedy this anomalous situation, we have today decided to extend the availability of section 212(c) to all grounds of deportability except sections 241(a)(6), (7), (17), and (19), which relate to subversives and war criminals.
In deciding to change our approach to section 212(c) waivers, we have considered that section 212(c) as currently applied bears little resemblance to the statute as written.3 As written, the provision applies only in exclusion proceedings to lawful permanent residents "who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years." However, the Board has for many years allowed the granting of a section 212(c) waiver in deportation proceedings nunc pro tunc. Matter of M____, 5 I&N Dec. 598 (BIA 1954); see also Matter of Edwards, 10 I&N Dec. 506 (BIA 1963, 1964); Matter of G____ A____, 7 I&N Dec. 274 (BIA 1956); Matter of F____, 6 I&N Dec. 537 (BIA 1955); Matter of S____, 6 I&N Dec. 392 (BIA 1954; A.G. 1955). This exception was in keeping with the allowance, as early as 1940, under the seventh proviso to section 3 of the Immigration Act of 1917, which was the predecessor to section 212(c), that relief could be had in deportation proceedings where an alien departed from the United States and returned after the ground of exclusion arose. Matter of L____, 1 I&N Dec. 1 (BIA, A.G. 1940).
In 1976, the availability of section 212(c) relief was significantly expanded when the United States Court of Appeals for the Second Circuit held that a section 212(c) waiver should be available regardless of whether the applicant had ever departed from the United States. Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The court held that "[f]undamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner." Id. at 273. This Board decided shortly thereafter to adopt the approach of the Second Circuit nationwide. Matter of Silva, 16 I&N Dec. 26 (BIA 1976). As former Board Member Appleman wrote in his concurrence in Silva, "[s]ection 212(c) has now been...
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