Matter of M---- P----

• Decision Date: 27 June 1962
• Docket Number: A-2467230.
• Citation: 9 I&N Dec. 747
• Parties: MATTER OF M---- P----. In DEPORTATION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 747

MATTER OF M---- P----.

In DEPORTATION Proceedings.

A-2467230.

Board of Immigration Appeals.

Decided by Board June 27, 1962.

Creation of record of lawful entry — Section 249, 1952 act — Record of lawful admission for permanent residence still "available" notwithstanding subsequent deportability.

Requirement in section 249 of the 1952 Act that no record of lawful admission "is otherwise available" precludes creation of record of lawful admission for alien lawfully admitted for permanent residence in 1925 who last entered in 1957 and who became deportable in 1959. (Matter of R----, 8-598, distinguished.)

CHARGE:

Order: Act of 1952 — Section 241(a)(4) [8 U.S.C. 1251(a)(4)] — Convicted of crime involving moral turpitude within 5 years after entry and sentenced for a year or more.

BEFORE THE BOARD

DISCUSSION: The respondent has been found deportable as an alien convicted of a crime involving moral turpitude committed within 5 years after entry and thereafter sentenced to confinement for a year or more (8 U.S.C. 1251(a)(4)). An appeal from the special inquiry officer's order of deportation entered on June 1, 1959, was dismissed by this Board on October 23, 1959. The respondent now moves a reopening of the proceedings to receive an application for adjustment of status under section 249 of the Immigration and Nationality Act (8 U.S.C. 1259) and to petition for waivers of his ineligibility under section 5 of the Act of September 11, 1957 (Public Law 85-316; 8 U.S.C. 1182b). A memorandum in opposition to the motion has been submitted by the examining officer.

The respondent, a native and national of Mexico, male, married, 60 years of age, last entered the United States through the port of San Ysidro, California, on or about September 25, 1957, following a one-day visit to Mexico. He was convicted on March 26, 1959, in the Superior Court of Los Angeles, California, for assault with a deadly weapon (section 245, California Penal Code) committed on February 3, 1959. He was sentenced on April 22, 1959, to confinement in the California State Prison for a period not to exceed 10 years. It is alleged that the respondent will be released from the State Penitentiary on or about May 7, 1962.

The respondent is married to a lawful resident alien and is the father of one resident alien and 6 citizen children. He has resided in the United States since his lawful admission for permanent residence at El Paso, Texas, on April 1, 1925. It is alleged in respondent's motion that his wife and one minor child need his support. The family income is derived from a small bakery owned by the respondent. It is also alleged that the respondent's wife cannot operate the bakery at a profit without the services of the respondent.

The respondent rests his claim to eligibility for adjustment of his status under section 249, supra, on a decision by the Assistant Commissioner of the Immigration and Naturalization Service, Matter of R----, 8-598 (March 9, 1960). The alien in Matter of R----, supra, originally entered the United States as a nonpreference quota immigrant on May 28, 1928. He visited in Canada during August of 1954 and reentered at St. Albans, Vermont on or about August 4, 1954. He falsely represented himself to be a citizen of the United States on the occasion of his reentry.

Section 249, supra, provides, inter alia, that the Attorney General, in his discretion, under certain conditions, may create a "record of lawful admission for permanent residence" for aliens who enter the United States prior to June 28, 1940, "if no such record is otherwise available." (Emphasis supplied.) The Assistant Commissioner held in Matter of R----, supra, that no record of lawful admission was available within the meaning of section 249 because the alien's illegal reentry on or about August 4, 1954, vitiates the prior record of lawful admission. The alien R---- was permitted to adjust his immigration status under section 249 notwithstanding the fact that his original entry was for lawful permanent residence.

The examining officer is of the opinion that Matter of R----, supra, is not controlling in this case because the respondent's last entry on or about September 25, 1957, is a lawful entry within the meaning of 8 CFR 211.1(b)(1).¹...