Matter of Tanori

• Decision Date: 04 February 1976
• Docket Number: A-17262054,Interim Decision Number 2467
• Citation: 15 I&N Dec. 566
• Parties: MATTER OF TANORI In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

15 I&N Dec. 566

MATTER OF TANORI

In Deportation Proceedings

Interim Decision Number 2467

A-17262054

Board of Immigration Appeals.

Decided by Board February 4, 1976

Where the deportability of respondent resulted from a conviction of a marijuana violation which occurred prior to his temporary departure from the United States; evidence of record establishes that he is statutorily eligible for discretionary relief under section 212(c) of the Immigration and Nationality Act; he has close family ties in the United States, and there is no evidence of misconduct apart from the conviction of a marijuana violation, the record is remanded in order to give the immigration judge an opportunity to consider, in deportation proceedings, respondent's application for a nunc pro tunc waiver 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 possession of marijuana for sale in violation of section 36-1002.06 of the Arizona Revised Statutes.

ON BEHALF OF RESPONDENT: Byron B. Park, Esquire Edward R. Litwin, Esquire 681 Market Street, Suite 930 San Francisco, California 94105.

ON BEHALF OF SERVICE: Bernard J. Hornbach Trial Attorney.

In a decision dated March 12, 1974, the immigration judge found the respondent deportable on the above charge, and ordered him to be deported to Mexico. On appeal to this Board, the respondent applied for termination of proceedings or, in the alternative, remand for consideration of an application for a nunc pro tunc waiver under section 212(c) of the Immigration and Nationality Act. In our decision dated December 26, 1974, we found that respondent was deportable. Accordingly, we denied his request for remand and dismissed the appeal. Respondent appealed that decision to the United States Court of Appeals for the Ninth Circuit. On June 18, 1975, the United States Attorney moved to remand this case. On July 15, 1975, the Court of Appeals issued an order granting that motion and remanding this case to us for further administrative proceedings. The record will be remanded to the immigration judge.

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. The respondent is a 26-year-old alien, native and citizen of Mexico. He was lawfully admitted for permanent residence on March 4, 1966. On August 21, 1973, respondent was convicted in the Superior Court of the State of Arizona of possession of marijuana for sale in violation of section 36-1002.06 of the Arizona Revised Statutes.

The record contains a copy of a receipt from a jewelry store in San Luis, Mexico which indicates that respondent made a payment of $30 for a gold chain on August 21, 1973. Also of record is a copy of a letter from respondent's sister, Esthela Tanori de Aguayo, which indicates that respondent visited her in San Luis, Mexico on August 21, 1973, and returned to Salinas, California on the next day. Respondent stated in a letter to his attorney on April 2, 1974, that he made a telephone call to his wife in the United States from San Luis, Mexico on August 21, 1973, but was unable to obtain a record of that call from the Mexican telephone company. In an application for advance permission to return to unrelinquished domicile, respondent stated that he departed temporarily from the United States and entered Mexico on August 21, 1973 for a period of 24 hours, and was readmitted to the United States at the San Luis border station August 22, 1973.

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...