Matter of Smith
| Decision Date | 08 October 1965 |
| Docket Number | A-10005876,Interim Decision Number 1510 |
| Parties | MATTER OF SMITH In Section 212(c) Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The applicant, a native of England, a citizen of Great Britain, appeals from the denial of an application for advance permission to return to an unrelinquished domicile pursuant to a waiver under section 212(c) of the Immigration and Nationality Act (8 U.S.C. 1182(c)). Counsel on appeal urges that the action taken by the District Director at New York is an abuse of discretion. He also urges a remand of the case to the District Director in light of additional evidence alleged to be material to the issue before us.
The applicant, a male alien 34 years of age, last entered the United States through the port of Buffalo, New York on June 19, 1956. He was admitted for permanent residence upon presentation of an immigration visa issued at Toronto, Canada on June 13, 1956.
An order to show cause in deportation proceedings was issued by the Assistant District Director at New York on March 1, 1962. It charges that the applicant is deportable under section 241(a) (4) of the Immigration and Nationality Act as an alien who after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The charge is based upon a showing that the applicant was convicted in the Felony Court of Manhattan, New York on January 28, 1960 for the offense of disorderly conduct in violation of section 722, subdivision 8, of the New York Penal Code. The applicant was again convicted in the Felony Court of Manhattan, New York on February 6, 1962 for a violation of the same statute.
During the course of the hearing (p. 27) accorded the applicant in deportation proceedings on December 8, 1964, his then counsel submitted an application for adjustment of status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) pursuant to a decision by the Court of Appeals for the Second Circuit in the case of Hans Werner Tibke v. Immigration and Naturalization Service.1 It was also stated for the record that the applicant would apply for an exercise of the discretion contained in section 212(c) of the Immigration and Nationality Act in connection with his application for an adjustment of status under the provisions of section 245 (supra), (p. 28). The special inquiry officer adjourned the hearing without decision for the conduct of investigations by the Immigration Service in connection with the application for relief under section 245 of the Immigration and Nationality Act.
An application for advance permission to return to an unrelinquished domicile pursuant to a waiver of the grounds of inadmissibility under section 212(c) of the Immigration and Nationality Act (supra) was received by the District Director at New York on January 29, 1965. The application states in substance that the applicant may be inadmissible by reason of his convictions in New York State on January 28, 1960 and February 6, 1962 for violation of subdivision 8 of section 722 of the Penal Code of New York (disorderly conduct) committed on January 28, 1960 and January 20, 1962 and that the Attorney General in his discretion may not adjust his status under section 245 apparently for the reason that without the waiver he would be ineligible to receive an immigration visa and re-enter the United States. The District Director denied the application on the ground that the applicant does not warrant the favorable exercise of discretion in his case because of two criminal convictions within the past five years.
The Service maintains that counsel is attempting to use a deportation case as a vehicle for obtaining relief which is by statute limited to an exclusion proceeding. It is their position that a waiver under section 212(c) of the Immigration and Nationality Act is not available to an applicant for a change of status under section 245 of the Immigration and Nationality Act because such an applicant is not an alien previously lawfully admitted who temporarily proceeds abroad voluntarily and not under an order of deportation and who is returning to a lawful unrelinquished domicle of seven consecutive years.
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