Matter of Wadud
| Decision Date | 04 October 1984 |
| Docket Number | A-13596115.,Interim Decision Number 2980 |
| Citation | 19 I&N Dec. 182 |
| Parties | MATTER OF WADUD. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service has appealed from a decision of the immigration judge dated April 15, 1982, finding the respondent deportable on his own admissions and granting his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982). The appeal will be sustained and the record will be remanded to the immigration judge.
The respondent is a native of India and citizen of Bangladesh. The record reflects that he was admitted to the United States as a lawful permanent resident on October 4, 1966. The respondent has a son who was born out of wedlock in this country on December 22, 1968.
The respondent was convicted on November 21, 1979, in the United States District Court for the Southern District of New York of six counts of conspiracy to defraud and to commit offenses against the United States for which he was sentenced to 15 months' imprisonment. The offense with which we are concerned in this proceeding is the respondent's conviction for aiding and abetting another alien to obtain a visa, knowing it to have been procured by means of a false claim or to have been otherwise procured by fraud or unlawfully obtained in violation of 18 U.S.C. §§ 2 and 1546 (1982).1
In an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) issued on February 17, 1981, the Service charged the respondent with deportability under section 241(a)(5) of the Act, 8 U.S.C. § 1251(a)(5) (1976). That section provides, inter alia, that an alien who has been convicted of violating 18 U.S.C. § 1546 (1976) shall be deported.2 The respondent conceded deportability on the basis of his conviction but applied for section 212(c) relief, asylum, and withholding of deportation. The immigration judge determined that the respondent was statutorily eligible for a waiver of inadmissibility under section 212(c) of the Act and that a favorable exercise of discretion was warranted. He therefore made no finding regarding the respondent's claim of persecution.
On appeal the Service argues that the immigration judge erred in finding that the respondent was eligible for section 212(c) relief and that he merited a waiver as a matter of discretion. We agree and shall sustain the appeal.
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 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds of exclusion enumerated in section 212(a) of the Act.
Although the statute describes a waiver available to aliens seeking to eliminate a ground of inadmissibility upon application to enter the United States, it has been interpreted to include availability for relief in deportation proceedings as well. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Granados, 16 I&N Dec. 726 (BIA 1979); Matter of Hom, 16 I&N Dec. 112 (BIA 1977); Matter of Silva, 16 I&N Dec. 26 (BIA 1976); Matter of Tanori, 15 I&N Dec. 566 (BIA 1976). However, the Board has consistently held that section 212(c) of the Act can only be invoked in a deportation hearing where the ground of deportation charged is also a ground of inadmissibility. Matter of Granados, supra; Matter of M----, 5 I&N Dec 642 (BIA 1954); Matter of T----, 5 I&N Dec. 389 (BIA 1953); cf. Matter of Salmon, 16 I&N Dec. 734 (BIA 1978); Matter of Hom, supra; Matter of Tanori, supra.3
In the instant case the respondent was charged with deportability under section 241(a)(5) of the Act which has no comparable ground of excludability among those specified in section 212(c). See Matter of R----G----, 8 I&N Dec. 128 (BIA 1958); Matter of S----, 7 I&N Dec. 536 (BIA 1957). The respondent argues, however, that his conviction involves moral turpitude and, consequently, would render him excludable under section 212(a)(9) of the Act if he were to apply for admission to the United States. Therefore, he contends that a section 212(c) waiver of inadmissibility should be available to him in these proceedings. In support of his assertions, he cites our decision in Matter of Granados, supra, where we concluded that a conviction for possession of a sawed-off shotgun, which was a deportable offense under section 241(a)(14) of the Act, could not be waived by section 212(c) because it was not one of the grounds of excludability specified in the statute. We further noted that it was not "a crime involving moral turpitude that would render the respondent excludable under section 212(a)(9) of the Act." Id. at 728.
Our statement in Granados as to whether the conviction in that case was a crime involving moral turpitude was dictum which is not controlling here. Furthermore, we need not determine whether the respondent's conviction was one involving moral turpitude because we decline to expand the scope of section 212(c) relief in cases where the ground of deportability charged is not also a ground of inadmissibility. Were we to hold otherwise, an anomolous situation would result in cases where deportability is charged under section 241(a)(5) of the Act since most of the offenses described in that section do not involve moral turpitude. To afford section 212(c) relief only to those aliens whose crime under section 241(a)(5) involved moral turpitude would be to reward those guilty of a more egregious offense for their greater culpability. We are unable to conclude that Congress intended such an inequitable consequence to ensue from the implementation of section 212(c). Therefore, we hold that deportability under section 241(a)(5) of the Act cannot be waived by section 212(c) because no analogous ground of inadmissibility is enumerated in section 212(a) of the Act. Accordingly, we conclude that the immigration judge erred in finding the respondent eligible for section 212(c) relief.
In any case, we also find the immigration judge's discretionary grant of a waiver to be in error. In determining that the adverse factors presented were outweighed by the favorable ones, the immigration judge stated that the only evidence of the respondent's bad moral character in the record was his conviction. He noted on the other hand that the respondent had a long period of residence in this country and a "good history of employment," that he "demonstrated the existence of substantial business and properties ties," and that his deportation would have a devastating effect on his child and the child's grandmother, with whom he formed a family unit.
The Service argues that the immigration judge failed to consider the adverse evidence of record, including a sentencing memorandum written by the United States Attorney in relation to the respondent's conviction. In the memorandum it is noted that the respondent was employed in violation of his student status during his early years of residence in this country and that he made misstatements denying his employment on applications for extension of stay and adjustment of status. The memorandum also discusses the respondent's exploitation of illegal aliens who were required to work long hours with little or no salary at his business establishments in order to obtain lawful permanent resident status. Several investigations by both state and federal agencies into the respondent's activities are related as well.
In Matter of Marin, 16 I&N Dec. 581 (BIA 1978), we stated that certain factors should be considered in determining whether a favorable exercise of discretion is warranted on a waiver request under section 212(c). Among the factors deemed adverse to an application are the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country.
Favorable considerations include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this country's Armed Forces, a history of employment, the existence of property or business ties, evidence of value and service to the community proof of a genuine rehabilitation if a criminal record exists, and other evidence attesting to the respondent's good character (e.g., affidavits from family, friends, and responsible community representatives). An alien applying for section 212(c) relief bears the burden of demonstrating that he merits a favorable exercise of discretion. Matter of Marin, supra.
The respondent was...
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