Matter of Montenegro
| Decision Date | 18 November 1992 |
| Docket Number | A-24937958.,Interim Decision Number 3192 |
| Parties | MATTER OF MONTENEGRO. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)(Supp. III 1991), is ineffective to remove deportability under section 241(a)(2)(C) of the Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), for conviction of a firearms violation, even where the firearms violation is also a crime involving moral turpitude within the scope of section 212(a)(2)(A)(i)(I) of the Act. Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993); and Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980), followed.
(2) Matter of Meza, 20 I&N Dec. 257 (BIA 1991), is limited to the question of eligibility for section 212(c) relief in the case of a conviction for a drug-trafficking aggravated felony and is based on the specific amendment to section 212(c) regarding aggravated felonies; it does not alter the general rule represented in Matter of Wadud, 19 I&N Dec. 182 (BIA 1984), and Matter of Granados, supra, and reaffirmed in Matter of Hernandez-Casillas, supra, that section 212(c) relief 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 excludability.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation
ON BEHALF OF RESPONDENT: Alma Rosa Nieto, Esquire 520 South Lafayette Park Place Suite 204 Los Angeles, California 90057.
In a superseding order dated March 30, 1992, the immigration judge found the respondent deportable as charged under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), for conviction of a firearms violation. The immigration judge further determined that the respondent was ineligible for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991), and ordered him deported to Guatemala. The respondent has appealed. The appeal will be dismissed.
The respondent is a native and citizen of Guatemala who was admitted into the United States on October 29, 1979, as a nonimmigrant visitor for pleasure. On June 24, 1984, his status was adjusted to that of a lawful permanent resident. On January 18, 1989, the respondent was convicted of voluntary manslaughter and assault with a firearm, in violation of California Penal Code sections 192(a) and 245(a)(2), respectively. At the hearing before the immigration judge the respondent conceded deportability under section 241(a)(2)(C) of the Act, based on the conviction for assault with a firearm. He does not, and indeed could not, contest deportability on appeal. See Matter of Roman, 19 I&N Dec. 855 (BIA 1988). Deportability has been established by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1992).
On appeal the respondent contends that the immigration judge failed to consider the trial brief submitted in support of his claim of eligibility for a waiver under section 212(c) of the Act, and that he was therefore denied due process and a fair hearing. In addition, the respondent reasserts his claim that he is eligible for section 212(c) relief and is deserving of a grant of the waiver in the exercise of discretion. Inasmuch as we have reviewed the record on a de novo basis, the respondent has not suffered any prejudice due to the immigration judge's alleged failure to consider all of his arguments in favor of his request for relief under section 212(c) of the Act. Cf. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).
The decision of the Attorney General in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993), reaffirmed the Board's holding in Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980), that a section 212(c) waiver is available in deportation proceedings only to those aliens who have been found deportable under a charge of deportability for which there is a comparable ground of excludability. See also Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988); Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Salmon, 16 I&N Dec. 734 (BIA 1978). This Board and all immigration judges are strictly bound by the determinations of the Attorney General because our jurisdiction and authority derive from his. See 8 C.F.R. §§ 3.0-3.1(d) (1992). The provisions at issue in Hernandez-Casillas were those that existed prior to the revisions of section 212(c) and the deportation and exclusion grounds by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (effective Nov. 29, 1990). However, even after the 1990 revisions, there is no corresponding exclusion ground to the charge of deportability under section 241(a)(2)(C) of the Act (previously 241(a)(14)). Accordingly, we find the holdings in Hernandez-Casillas and Granados to be controlling in this case and conclude that the respondent is not eligible for a waiver under section 212(c) of the Act. See Matter of Hernandez-Casillas, supra, at 263 n. 1.
We nonetheless find it appropriate to address one of the respondent's contentions more specifically. The respondent contends that his conviction for assault with a firearm, for which he was found deportable under section 241(a)(2)(C) of the Act, would also render him excludable under section 212(a)(2)(A)(i)(I) of the Act (previously 212(a)(9)), for having been convicted of a crime involving moral turpitude, and that section 212(a)(2)(A)(i)(I) of the Act should therefore be considered a comparable ground of exclusion for purposes of section 212(c) eligibility. In support of this assertion the respondent cites Matter of Meza, 20 I&N Dec. 257 (BIA 1991).
This is the type of claim considered and rejected in Matter of Wadud, supra. In Wadud the respondent was charged with and found deportable under section 241(a)(5) which has no comparable enumerated ground among those specified in section 212(c). The respondent argued, however, that because his conviction involved moral turpitude, he would come within the scope of section 212(a)(9) were he to apply for admission to this country, and that he should therefore be considered eligible for section 212(c) relief. Matter of Wadud, supra, at 185. Upon considering the respondent's position, the Board specifically "decline[d] to expand the scope of section 212(c) relief in cases where the ground of deportability charged is not also a ground of inadmissibility." Id. Similarly, the respondent's argument in this case relative to crimes involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act must be rejected; section 212(c) cannot waive the charge of deportability under section 241(a)(2)(C) in the instant case because section 241(a)(2)(C) has no analogous ground of inadmissibility enumerated in section 212(c) of the Act.
Contrary to the respondent's contention, our decision in Matter of Meza, supra, did not expand the general holding represented in Matter of Wadud, supra, and Matter of Granados, supra. In Meza we addressed the unique situation created by the language and legislative history of an amendment to section 212(c) by section 511 of the Immigration Act of 1990, 104 Stat. at 5052, which indicated that some aggravated felons are eligible for a section 212(c) waiver in deportation proceedings even though there is no single comparable ground of exclusion based on conviction of an aggravated felony. Matter of Meza, supra, at 3.1 Based on the implications of this language and history we found that "a waiver under section 212(c) is not unavailable to an alien convicted of an aggravated felony simply because there is no ground of exclusion which recites the words, `convicted of an aggravated felony,' as in section 241(a)(4)(B) of the Act." Id. at 3-4. We noted that the definition of "aggravated felony" at section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. III 1991), refers to several types or categories of offenses. Id. at 4. We further noted that the specific category of aggravated felony based on "any illicit trafficking in any controlled substance . . ., including any drug trafficking crime" is comprised of trafficking offenses, "most, if not all, of which would also be encompassed within the scope of section 212(a)(23) of the Act." Id. at 5. We therefore concluded that "as the respondent's conviction for a drug-related aggravated felony clearly could also form the basis for excludability under section 212(a)(23), he is not precluded from establishing eligibility for section 212(c) relief based on his conviction for an aggravated felony." Id. Thus, the discussion in Matter of Meza is limited to the question of section 212(c) eligibility in the case of a conviction for a drug-trafficking aggravated felony and is based on the specific amendment to section 212(c) regarding aggravated felonies; it does not alter the general rule represented in Matter of Wadud and Matter of Granados, and reaffirmed in Matter of Hernandez-Casillas, supra. Following the rule of these precedents, we conclude that deportability under section 241(a)(2)(C) of the Act cannot be waived by section 212(c) because there is no analogous ground of inadmissibility enumerated in section 212(c) of the Act.2 Accordingly, the appeal will be dismissed.
It is unfortunate that the respondent conceded deportability under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991). This section...
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