Matter of Przygocki, Interim Decision Number 2789
| Decision Date | 21 March 1980 |
| Docket Number | Interim Decision Number 2789,A-8241801 |
| Parties | MATTER OF PRZYGOCKI In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The Service appeals from the February 15, 1978, decision of the immigration judge conditionally granting the respondent's application for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c). The record will be remanded for further proceedings and the entry of a new order.
The respondent is a 29-year-old native of Germany and citizen of Poland who last entered the United States as a lawful permanent resident in 1952. In May 1975, he was convicted in a Missouri state court for unlawfully selling a quantity of marijuana and was sentenced to confinement for a period of five years. He was thereafter charged with being deportable under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).
Deportation proceedings were held in November 1976 and April 1977 while the respondent was still in confinement. The respondent denied deportability, but was properly found deportable as charged. The remainder of the proceedings below concerned the respondent's application for relief under section 212(c) of the Act. See Matter of Silva, 16 I&N Dec. 26 (BIA 1976).
The record indicates that the respondent entered this country while under two years of age and that he has lived here ever since. Evidence submitted in support of the application for relief indicates that: The respondent's father is deceased. The respondent cared for his mother, who has suffered from mental illness, until she was committed to a mental institution in 1974. He assists in supporting his mother when he is able and provides her "affection and moral support." He has a United States citizen sister and two citizen children.1 He has no relatives, friends or acquaintances outside of the United States and is "not really" familiar with any language other than English. He has suffered from drug dependency in the past, which he indicates is the cause of his criminal record (including a 1969 burglary conviction). While in confinement the respondent earned a high school equivalency degree and college credits by taking part in a part-time college program. His confinement record has been "quite good" according to a 1976 report prepared by his caseworker at the state institution. The caseworker believed that the respondent would be a "productive, responsible person upon his release from incarceration."
After considering the equities and adverse matters in the respondent's case, the immigration judge determined that favorable discretionary relief was warranted. He found that the record indicated that a "reformation [had] taken place." The immigration judge then sought to conditionally grant the application for section 212(c) relief subject to the respondent not violating "the criminal laws of any state or of the United States for a period of five years...." By further order, the immigration judge provided that if the respondent was convicted of an offense within five years, the application for relief was automatically revoked and the respondent would be deported.
The Service appeals from the immigration judge's exercise of discretion, submitting that favorable action was inappropriate in view of the respondent's "extensive and serious criminal record which extends from the age of 17 until his present confinement and the lack of any real showing that he has truly reformed."
We will first address the issue of the immigration judge's authority under law and regulation to grant section 212(c) relief subject to specified conditions subsequent. The predecessor provision to section 212(c) of the 1952 Act was the seventh proviso to section 3 of the 1917 Immigration Act. That proviso read:
That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.
In view of the express statutory language authorizing the Attorney General to prescribe conditions to grants of relief, the Board held that restrictions could validly be placed on a grant of seventh proviso relief. See Matter of V---- I----, 3 I&N Dec. 571, 573 (BIA 1949); Matter of L----, 2 I&N Dec. 486 (BIA 1946; A.G. 1946). Such conditions ordinarily pertained to the applicant remaining a person of good moral character and not subsequently committing "any offenses." The orders specified that revocation could only occur "after hearing." See, for example, Matter of S----, 4 I&N Dec. 180 (C.O. 1950; BIA 1951; A.G. 1951); Matter of G---- Y---- G----, 4 I&N Dec. 211 (BIA 1950; A.G. 1951).
The seventh proviso was superseded by section 212(c) of the 1952 Act. This section provides:
Aliens lawfully admitted for permanent residence 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, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraph (1) through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b).
The language in section 212(c), thus, contains no express provision for conditional grants of relief as had been the case with the seventh proviso. Nonetheless, in cases involving waivers of crimes, the Board continued using the same "conditional" orders when relief was granted under section 212(c) as had been used when relief was granted under the seventh proviso. See Matter of G---- A----, 7 I&N Dec. 274 (BIA 1956); Matter of S----, 6 I&N...
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