Matter of Silva
| Decision Date | 10 September 1976 |
| Docket Number | A-8745827,Interim Decision #2532 |
| Citation | 16 I&N Dec. 26 |
| Parties | MATTER OF SILVA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) Under the provisions of section 212(c) of the Act (8 U.S.C. 1182(c)), a waiver of the ground of inadmissibility may be granted to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the acts which render him deportable. The constitutional requirements of due process and equal protection of the laws mandate that no distinction shall be made between permanent resident aliens who proceed abroad and nondeparting permanent resident aliens who apply for the benefits of section 212(c) of the Act. See Francis v. INS 532 F.2d 268 (2 Cir.1976).
(3) Permanent resident aliens similarly situated shall be treated equally with respect to their applications for discretionary relief under section 212(c) of the Act.
CHARGE:
Order: Act of 1952 — Section 241(a)(11) [8 U.S.C. 1251(a)(11)] — Convicted for violation of a law relating to marihuana
ON BEHALF OF RESPONDENT: Laurier B. McDonald, Esquire Pena, McDonald, Prestia and Zipp P.O. Box 54 Edinburg, Texas 78539
On July 8, 1974, the respondent was convicted in the United States District Court for the Southern District of Texas, Brownsville Division, of possession of marihuana with the intent to distribute, in violation of 21 U.S.C. 841(a)(1). He was sentenced to imprisonment for a period of five years, a special parole term of two years, and a $500 fine. He was ordered to serve six months of the imprisonment and the remainder of the sentence was suspended. Respondent was also placed on probation for five years.
At this hearing, respondent admitted to the factual allegations contained in the Order to Show Cause and conceded deportability under section 241(a)(11) of the Act. The immigration judge found the respondent deportable and ordered his deportation to Mexico.
On appeal, counsel contends that the respondent is eligible for advance waiver of inadmissibility under the provisions of section 212(c) of the Act. The record contains respondent's Application for Advance Permission to Return to Unrelinquished Domicile (Form I-191) filed March 13, 1975.
We find that respondent is a native and citizen of Mexico who has been a lawful permanent resident since September 17, 1954. His deportability resulted from a conviction of a marihuana violation. The record shows no evidence that he departed the United States following his marihuana conviction.
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 certain specified grounds for exclusion enumerated in section 212(a) of the Act. The grounds specified include an alien convicted of a marihuana violation as set forth in section 212(a)(23) of the Act.
The issues presented by the case are whether the respondent is statutorily eligible for discretionary relief under section 212(c) of the Act in a deportation proceeding, and whether respondent's case merits a favorable exercise of discretion.
In a decision dated May 29, 1975, the immigration judge found the respondent deportable as charged, denied his application for advance permission to return to an unrelinquished domicile, and ordered him deported. The respondent has appealed from that decision. The appeal will be sustained.
The respondent is a 34-year-old married male alien, a native and citizen of Mexico. He was admitted to the United States as a permanent resident alien on September 17, 1954.
Under section 241(a)(11) of the Immigration and Nationality Act, an alien in the United States is deportable if, at any time after entry, he has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marijuana.
We have consistently held that a waiver of the ground of inadmissibility under section 212(c) of the Act may be granted nunc pro tunc in deportation proceedings, Matter of Tanori, Interim Decision 2467 (BIA 1976); Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter of G---- A----, 7 I. & N. Dec. 274 (BIA 1956); Matter of S----, 6 I. & N. Dec. 392 (BIA 1954; A.G.1955); Matter of F----, 6 I. & N. Dec. 537 (BIA 1955); Matter of M----, 5 I. & N. Dec. 598 (BIA 1954); Matter of L----, 1 I. & N. Dec. 1 (BIA, A.G.1940). (Decided under predecessor statute.) In these cases we have interpreted section 212(c) of the Act to mean that a waiver of the ground of inadmissibility may be granted in a deportation proceeding when, at the time of the alien's last entry, he was inadmissible because of the same facts which form the basis of his deportability, Matter of G---- A----, supra; Matter of S----, supra.
It has been our view that a permanent resident alien is not statutorily eligible for relief from deportation pursuant to section 212(c) of the Act unless (1) his deportability resulted from a conviction which occurred prior to his departure from the United States; (2) his departure from the United States was voluntary and temporary and not under an order of deportation; and (3) that at the time of his last entry he was returning to an unrelinquished domicile of seven years.
In Matter of Smith, 11 I. & N. Dec. 325 (BIA 1965), we held that an alien's application for a section 212(c) waiver can be considered (by an immigration judge) in conjunction with an application for adjustment of status under section 245 of the Act in deportation proceedings. In Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971), affirmed 466 F.2d 1198 (9 Cir.1972), we held that section 212(c) relief was not available to a native of the Western Hemisphere because he was ineligible for adjustment of status under section 245 of the Act. Under the facts of that case, the respondent, a native and citizen of Mexico who was lawfully admitted as a permanent resident alien in 1954, was found deportable on the basis of a 1969 narcotics conviction. The evidence revealed that he had not departed the United States since his conviction. In deciding that the respondent did not qualify for a waiver of the ground of inadmissibility under section 212(c) of the Act, we pointed out that:
The requirement that an alien must have temporarily proceeded abroad voluntarily and not under an order of deportation makes it clear that Congress curtailed our authority for the advance exercise of section 212(c) relief in a deportation proceeding. Where a section 212(c) application is not coupled with an application for adjustment of status under section 245 of the Act, we have no basis for avoiding the statutory requirement that an alien lawfully admitted for permanent residence must be returning to resume a lawful domicile of seven consecutive years following a temporary, voluntary departure not under an order of deportation.
In Matter of Francis, unreported, file A-12081215 (BIA August 15, 1974), the facts related to a 54-year-old male respondent, a native and citizen of Jamaica, who was admitted to the United States as a permanent resident alien on September 8, 1961. Following a deportation hearing, the immigration judge found the respondent deportable as charged by virtue of a conviction on October 20, 1971, for criminal possession of dangerous drugs in the sixth degree (marihuana). The immigration judge also found that the respondent had not been absent from the United States since his original entry. In that case we agreed with the immigration judge that the respondent was deportable within the meaning of section 241(a)(11) of the Act and that deportability had been established by clear, convincing and unequivocal evidence. We further agreed with the immigration judge that deportation proceedings, rather than exclusion proceedings, were properly instituted, and that the respondent was not eligible to apply for relief under section 212(c) of the Immigration and Nationality Act.
On appeal to the United States Court of Appeals for the Second Circuit in Francis v. INS, 532 F.2d 268 (2 Cir.1976), the court held that our interpretation of section 212(c) of the Act as applied to the respondent was unconstitutional; and that the respondent, a permanent resident alien who had not departed the United States following his marihuana conviction, was entitled to apply to the Attorney General for discretionary relief under section 212(c) of the Act.1 The court was of the opinion 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 nondeparting permanent resident aliens.
In so holding, the court in the Francis case pointed out that the enforcement of immigration laws and policies relating to such laws must respect the procedural safeguards of due process under the Fifth Amendment of the Constitution of the United States. The court also expressed the well-established view that the equal protection of the laws clause of the Fourteenth Amendment of the Constitution of the United States applies to aliens as well as citizens. In its application of the minimum scrutiny test2 to this case, the court was of the opinion that:
Fundamental fairness dictates that permanent resident aliens who are in like circumstances, but for...
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