ESPOSITO

Interim Decision #3243

Interim Decision #3243

In re Antonio ESPOSITO, Respondent

File A30 619 479 - New York

Decided March 30, 1995

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) For purposes of section 212(a)(10) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(a)(10) (1988), and its successor provision at section 212(a)(2)(B) of the Act,

8 U.S.C. § 1182(a)(2)(B) (Supp. V 1993), a sentence is “actually imposed” where a criminal

court suspends the execution of a sentence, but no sentence is “actually imposed” where the

imposition of sentence is suspended. Matter of Castro, 19 I&N Dec. 692 (1988), followed.

(2) Section 212(c) of the Act is ineffective to waive deportability under former section

241(a)(14) of the Act, 8 U.S.C. § 1251(a)(14) (1988), or section 241(a)(2)(C) of the Act,

8 U.S.C. § 1251(a)(2)(C) (Supp. V 1993), for conviction of a firearms violation, even where

the firearms violation is one of two or more crimes which may render the alien inadmissible

under section 212(a)(10) [now section 212(a)(2)(B)] of the Act. Matter of Montenegro, 20

I&N Dec. 603 (BIA 1992); Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990;

A.G. 1991), aff’d, 983 F.2d 231 (5th Cir. 1993); and Matter of Wadud, 19 I&N Dec. 182

(BIA 1984), followed.

FOR RESPONDENT: Michael P. DiRaimondo, Esquire, New York City

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Janice B. Podolny,

Appellate Counsel, and James A. O’Brien III, General Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA and

HEILMAN, Board Members; HOLMES, Alternate Board Member

HEILMAN, Board Member:

In a decision dated May 12, 1992, this Board dismissed the respondent’s

appeal from the Immigration Judge’s denial of his motion to reopen deporta-

tion proceedings. We found that the respondent had failed to establish that he

was prejudiced by the actions of his former counsel, and that the Immigration

Judge had correctly determined that the respondent was ineligible for relief

from deportation under section 212(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(c) (Supp. IV 1992). The respondent petitioned for

review of our decision in the United States Court of Appeals for the Second

Circuit. In Esposito v. INS, 987 F.2d 108 (2d Cir. 1993), the court vacated our

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May 12, 1992, decision and remanded this matter to us. The appeal will be

dismissed.

I. THE TWO ISSUES ON REMAND FROM

THE CIRCUIT COURT

The matter was remanded to us to determine two issues with respect to the

respondent’s request for relief under section 212(c) of the Act:

(1) [W]hether the aggregate suspended sentences of five years or more to which

Esposito was subjected were “actually imposed” within the meaning of [8 U.S.C.]

§ 1182(a)(2)(B), with the result that § 1182(a)(2)(B) applies to Esposito’s situation; and if

so, (2) whether an immigrant who has a conviction for weapons possession that would be a

constituent of a § 1182(a)(2)(B) violation, thus providing a ground for exclusion subject to

Francis v. INS, 532 F.2d 268 (2d Cir. 1976)] discretionary relief, is nonetheless ineligible

for such relief because that conviction standing alone also provides a ground for deportation

under [8 U.S.C.] § 1251(a)(2)(C) that has no counterpart in § 1182.

Esposito v. INS, supra, at 112.1

II. ISSUE ONE: THE AGGREGATE SENTENCES

“ACTUALLY IMPOSED”

On April 16, 1986, the respondent was convicted in the Circuit Court of

Virginia Beach, Virginia, of the following offenses: possession of marihuana

in violation of section 18.2-250.1 of the Virginia State Code; possession of

cocaine with intent to distribute in violation of section 18.2-248 of the Vir-

ginia State Code; and possession of a sawed-off shotgun in violation of sec-

tion 18.2-300(b) of the Virginia State Code. On the marihuana violation the

court sentenced the respondent to confinement for 12 months, then sus-

pended the execution of the sentence conditioned on the respondent’s good

behavior for a period of 20 years plus payment of court costs. For the cocaine

possession the respondent was sentenced to confinement for 20 years and

fined $10,000, then execution of the sentence to confinement was suspended

conditioned on the respondent’s good behavior for 20 years, service of 12

1 The grounds of exclusion and deportation were revised by the Immigration Act of 1990,

Pub. L. No. 101-649, §§ 601, 602, 104 Stat. 4978, 5067-82 (enacted Nov. 29, 1990). The circuit

court has framed the issues on remand using the 1990 revised grounds. The revisions, however,

do “not apply to deportation proceedings for which notice has been provided to the alien before

March 1, 1991." Immigration Act of 1990, § 602(d), 104 Stat. at 5082; cf. Matter of Papazyan,

20 I&N Dec. 568 (BIA 1992). Since the Order to Show Cause, Notice of Hearing, and Warrant

for Arrest of Alien in this case was served on the respondent in June 1987, the revisions do not

apply. The ground of exclusion at section 212(a)(2)(B)of the Act, 8 U.S.C. § 1182(a)(2)(B)

(Supp. V 1993), cited by the court in the quoted text, corresponds to former section 212(a)(10)

of the Act, 8 U.S.C. § 1182(a)(10) (1988). See Immigration Act of 1990, § 601, 104 Stat. at

5068. The charge of deportation at section 241(a)(2)(C) of the Act, 8 U.S.C. § 1251(a)(2)(C)

(Supp. V 1993), cited by the court in the quoted text, corresponds to former section 241(a)(14) of

the Act, 8 U.S.C. § 1251(a)(14) (1988). See Immigration Act of 1990, § 602, 104 Stat. at 5080.

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Interim Decision #3243

months in the city jail, and payment of court costs. Finally, with respect to his

conviction for unlawful possession of a sawed-off shotgun, the court sen-

tenced the respondent to 5 years’ imprisonment and suspended execution of

the sentence conditioned on the respondent’s good behavior for 20 years and

payment of court costs.

A. Case Precedent Defining the Term

“Actually Imposed”

This Board has not issued a precedent decision addressing whether a sentence

to confinement, the execution of which is subsequently suspended, is a “sen-

tence[] to confinement actually imposed” within the meaning of section

212(a)(10) of the Act, 8 U.S.C. § 1182(a)(10) (1988), or its successor section at

212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (Supp. V 1993). We have,

however, as noted by the circuit court, specifically addressed whether a sentence

to confinement, the execution of which is subsequently suspended, is a “sentence

actually imposed” for purposes of former section 212(a)(9) of the Act.2

In Matter of Castro, 19 I&N Dec. 692 (BIA 1988), this Board found that

when a court imposes a sentence but suspends execution of that sentence, the

sentence is “actually imposed” for purposes of section 212(a)(9) of the Act

even though probation may also be granted. Id. at 695. In contrast, when a

court suspends the imposition of the sentence, there is no “sentence actually

imposed.” Id. at 694. The phrases “sentence actually imposed” in section

212(a)(9) and “sentences to confinement actually imposed” in section

212(a)(10) appeared in the Act, at the same time, in successive paragraphs,

and relate to the same object and subject matter. We find that they must be

interpreted consistently. 2A N. Singer, Sutherland Statutory Construction,

§ 51.03 (4th ed. 1985). We note that the reasoning in Matter of Castro, supra,

has been upheld for purposes of section 212(a)(9), see Solis-Muela v. INS, 13

F.3d 372 (10th Cir. 1993),3 and followed in interpreting the “actually

imposed” requirement of section 212(a)(10), see Fonseca-Leite v. INS, 961

2 Former section 212(a)(9) of the Act was revised and redesignated as sections

212(a)(2)(A)(i)(I) and (II) of the Act by section 601 of the Immigration Act of 1990, 104 Stat. at

5067-68.

3 Mr. Solis-Muela had been convicted in a Wyoming court of disposing of stolen property.

Solis-Muela v. INS, supra, at 375. The court sentenced him to between 1 and 5 years of

imprisonment, but then suspended execution of all but 1 year of the sentence. Id. The Board

determined that the "sentence actually imposed," for purposes of the petty offense exception in

section 212(a)(9) of the Act, was between 1 and 5 years of imprisonment such that the alien did

not qualify for the exception. Id. In agreeing with the Board, the Court of Appeals for the Tenth

Circuit stated:

We cannot say that the BIA's interpretation is anything other than sensible and

reasonable. It followed its earlier decision, Matter of Castro, 1988 WL 235473, 1988 BIA

LEXIS 32, 19 I&N Dec. 692 (BIA 1988), in which the BIA reasoned that "when imposition

of the sentence is suspended, no sentence has been actually imposed," whereas "where the

execution of the sentence is suspended, a sentence has actually been imposed, even though

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F.2d 60 (5th Cir. 1992).4 Moreover, as no substantive change was made in

revising and redesignating section 212(a)(10) as section 212(a)(2)(B), we

find that the interpretation in Castro is equally applicable to section

212(a)(2)(B). See Rodrigues v. INS, 994 F.2d 32 (1st Cir. 1993) (discussing

that Castro reasoning “might prove determinative” in interpreting section

212(a)(2)(B), but that case at bar ultimately hinged on interpretation of sen-

tencing order).

B. The State Department Regulation at

22 C.F.R. § 40.22(b)

The State Department provision at 22 C.F.R. § 40.22(b) mentioned by the

circuit court in Esposito v. INS, supra, at 112, is not necessarily to the con-

trary. That provision states that a “sentence to confinement that has been sus-

pended by a court of competent jurisdiction is not one which has been

‘actually imposed’ within the meaning of [section] 212(a)(2)(B).” 22 C.F.R.

§ 40.22(b) (1994). Neither the regulation nor the interpretive notes found at

Vol. 9, Foreign Affairs Manual, Part I, 22 C.F.R. § 40.22 note 1.2

(TL:VISA-46 Aug. 26, 1991), indicate whether the suspension referred to is

suspension of the “imposition” or the “execution” of the sentence.

If suspension of the imposition of sentence is referred to, then the regula-

tion is not at all inconsistent with Matter of Castro, supra. The parties have

presented no cases addressing 22 C.F.R. § 40.22(b), and we are aware of

none. In such a vacuum we decline to interpret 22 C.F.R. § 40.22(b) as apply-

ing to suspension of the execution of sentence, an interpretation which would

probation may also be granted." 1988 WL 235473, 1988 BIA LEXIS 32 at *6-7 (emphasis

added). Id.

4 The decision of the Fifth Circuit relates the following facts and conclusions relevant to our

discussion:

Fonseca-Leite is a native and citizen of Brazil who has resided in the United States since

1967, last entering this country as a visitor in 1974. In July 1988 he was convicted of

possession of a firearm without a serial number and possession of an unregistered firearm.

He was sentenced to three years imprisonment on each count, with sentences to run

consecutively. The sentence on the second count was suspended. He was incarcerated 24

months and 20 days in federal prison on the first count. . . .

....

Fonseca-Leite maintains that the Board erred in applying the prohibition of 8 U.S.C.

§ 1182(a)(10) against him because he was not subjected to a prison sentence in excess of

five years on his two offenses. He points to the fact that he was confined for just over two

years. Fonseca misperceives the law. The actual time spent in confinement is irrelevant. He

was sentenced to two consecutive three-year periods of confinement. Six years was "the

aggregate sentences to confinement actually imposed." 8 U.S.C. § 1182(a)(10). That a

portion of the six years was suspended does not change that essential and basic fact. Matter

of Castro, 19 I&N Dec. 692 (BIA 1988). The BIA did not err in holding that Fonseca-Leite

is ineligible for admission into the United States.

Fonseca-Leite v. INS, supra, at 61-62.

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Interim Decision #3243

put the regulation at odds with a substantial body of contrary caselaw, includ-

ing our own. See Rodrigues v. INS, supra, at 34.

Furthermore, even assuming the State Department regulation evidenced a

clear conflict with the position we have taken, we note that this Board, as the

Attorney General’s delegate, is charged by law with interpreting questions of

law within our jurisdiction under the Act and, in this instance, for the reasons

stated, we would depart from the State Department regulation:

The Attorney General shall be charged with the administration and enforcement of this Act

and all other laws relating to the immigration and naturalization of aliens, except insofar as

this Act or such laws relate to the powers, functions, and duties conferred upon the Presi-

dent, the Secretary of State, the officers of the Department of State, or diplomatic or con-

sular officers: Provided, however, That determination and ruling by the Attorney General

with respect to all questions of law shall be controlling.

Section 103(a) of the Act, 8 U.S.C. § 1103(a) (1988); see also 8 C.F.R. § 3.1

(1994).

C. Conclusion

In response, then, to the first issue on remand, we find that even though the

execution of the sentence to confinement was suspended on each of the

respondent’s convictions, the “aggregate sentences to confinement actually

imposed” on the respondent within the meaning of section 212(a)(10) [now

212(a)(2)(B)] of the Act were: 12 months for the respondent’s marihuana

violation, plus 20 years for the respondent’s cocaine violation, plus 5 years

for the respondent’s firearms violation, for a total of 26 years. Matter of Cas-

tro, supra; see also Solis-Muela v. INS, supra; Rodrigues v. INS, supra;

Fonseca-Leite v. INS, supra. The respondent therefore could be deemed

inadmissible within the meaning of section 212(a)(10) [now 212(a)(2)(B)] of

the Act, with one of the constituent convictions being his firearms violation.

III. ISSUE TWO: STATUTORY ELIGIBILITY FOR

SECTION 212(c) RELIEF

Section 212(c) of the Act provides, in pertinent part, that aliens lawfully

admitted for permanent residence who temporarily proceed abroad volun-

tarily 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 dis-

cretion of the Attorney General without regard to certain specified grounds of

exclusion. In 1976, the availability of section 212(c) relief was significantly

expanded when the United States Court of Appeals for the Second Circuit

held that a section 212(c) waiver should be available regardless of whether

the applicant had departed from the United States subsequent to the acts

which rendered him deportable. Francis v. INS, 532 F.2d 268 (2d Cir. 1976).

The court held that “[f]undamental fairness dictates that permanent resident

aliens who are in like circumstances, but for irrelevant and fortuitous factors,

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be treated in a like manner.” Id. at 273. This Board decided shortly thereafter

to adopt the approach of the Second Circuit nationwide. Matter of Silva, 16

I&N Dec. 26 (BIA 1976).

In Matter of Granados, 16 I&N Dec. 726, 728 (BIA 1979), aff’d, 624 F.2d

191 (9th Cir. 1980), this Board indicated that Francis and Silva represented

the limit of our expansion of section 212(c) to deportation cases and stated

that because section 212(c), by its terms, permits the Attorney General to

waive only particular grounds for exclusion, this section may not be used to

obtain discretionary relief from a ground of deportation which is not also a

ground of exclusion listed under section 212(a). The constitutional sound-

ness of our position in Granados was confirmed by the Ninth Circuit in

Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988), which held that section

212(c) relief was unavailable to an alien where the particular ground for

deportation, conviction for a firearms offense, had no counterpart among the

grounds for exclusion.5

A. Matter of Hernandez-Casillas Reaffirmed the “Comparable

Ground” Analysis

In January 1990 this Board revisited the history and application of section

212(c) in deportation proceedings in Matter of Hernandez-Casillas, 20 I&N

Dec. 262 (BIA 1990). We recognized that the limitation represented in Mat-

ter of Granados, supra, could result in the total unavailability of relief from

deportation for longtime resident aliens who are deportable based on certain

offenses which are not nearly as serious as those of other aliens who are eligi-

ble for the section 212(c) waiver. Matter of Hernandez-Casillas, supra, at

264-65. In an effort to remedy this anomalous situation, we departed from

Granados and held that a waiver under section 212(c) of the Act would be

available to aliens deportable under any ground of deportation except those

where there is a comparable ground of exclusion which has been specifically

exempted from section 212(c). Matter of Hernandez-Casillas, supra, at

5 The Ninth Circuit decided to follow Francis in Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.

1981). In Cabasug, the court quoted its holding in Tapia-Acuna, and then distinguished it

based on the ground of deportation at issue as follows:

Specifically referring to subsection 11 [of 8 U.S.C. § 1251(a)], the provision relating to

narcotic drugs and marijuana, we said [in Tapia-Acuna]:

Consequently, we hold that eligibility for § 1182(c) relief cannot constitutionally be denied

to an otherwise eligible alien who is deportable under § 1251(a)(11), whether or not the

alien has departed from and returned to the United States after the conviction giving rise to

deportability.

[Tapia-Acuna v. INS, supra, at 225]. The language in the statute providing for exclusion of

aliens convicted of marijuana possession was substantially identical to the statutory

language providing for deportation. In contrast, the deportation ground involved here,

possession of a sawed-off shotgun or machine gun, has no counterpart in the exclusion

statute.

Cabasug v. INS, supra, at 1325.

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264-65. Our decision was referred to the Attorney General for review under

8 C.F.R. § 3.1(h).

On review of Hernandez-Casillas, the Attorney General disapproved of

the Board’s departure from Granados and specifically reaffirmed the holding

in Granados that a section 212(c) waiver is available in deportation proceed-

ings only to those aliens who have been found deportable under a charge of

deportability for which there is a comparable ground of excludability. Matter

of Hernandez-Casillas, 20 I&N Dec. 262, 288 (BIA 1990; A.G. 1991), aff’d,

983 F.2d 231 (5th Cir. 1993). This Board and all Immigration Judges are

strictly bound by the determinations of the Attorney General, and we will

apply the Attorney General’s decision in Hernandez-Casillas in this case.

See 8 C.F.R. §§ 3.0 - 3.1(d) (1994); Matter of Montenegro, 20 I&N Dec. 603,

604 (BIA 1992).

B. Section 212(c) of the Act Waives Grounds of Exclusion or

Deportation, not the Underlying Offenses

In Esposito v. INS, supra, the court described the Attorney General’s deci-

sion in Matter of Hernandez-Casillas, supra, as follows: “In Hernandez-

Casillas, the Attorney General held that his Francis-mandated discretion

extends only to aliens convicted of crimes that are grounds for deportation

and, like the marihuana offense in Francis, have counterparts in § 1182, the

exclusion section of the Immigration and Nationality Act.” Esposito v. INS,

supra, at 111. We do not perceive this to be an entirely accurate statement. It

is important to recognize that the relief provided by section 212(c) is the

waiver of a particular ground of exclusion or deportation, not a waiver of the

particular offense which forms the basis for that ground of exclusion or

deportation. The focus under Hernandez-Casillas and Granados is not

whether the deportable alien’s particular offense, in this case a firearms vio-

lation, could form the basis for a ground of exclusion and therefore be

waivable; rather, the focus is whether the ground of deportation against the

alien has a comparable ground of exclusion.

This focus on the grounds of deportation and exclusion, as opposed to

their underlying offenses, is readily apparent in the Attorney General’s deci-

sion in Hernandez-Casillas. On page 286-87 of Hernandez-Casillas the

Attorney General states: “I conclude that the Board erred in holding that

relief under section 212(c) may be afforded for grounds for deportation that

are not grounds for exclusion made waivable by the terms of section 212(c).”

In reaching this conclusion the Attorney General referred to the Board’s deci-

sion in Matter of Silva, supra, stating:

Under Silva . . . the Attorney General may not waive a ground for deportation if it is not a

ground for exclusion at all or if it is a ground for exclusion placed beyond the Attorney Gen-

eral’s discretionary powers by the terms of section 212(c). In contrast, under the Board’s

holding in this case, only the latter limitation would remain. The Board’s approach thus

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would take immigration practice even further from the statutory text, which refers only to

grounds for exclusion.

Matter of Hernandez-Casillas, supra, at 287.

Likewise, in determining that the Board’s holding in Hernandez-Casillas

was not mandated by equal protection principles, the Attorney General main-

tained the emphasis on the grounds of deportation and exclusion themselves,

and not on their underlying offenses. “[T]he Second Circuit in Francis and

the Board in Silva, by concluding that equal protection principles require

deviation from the literal terms of section 212(c), kept such deviations to

what they understood as the constitutionally mandated minimum; that is,

Francis and Silva require only that discretionary relief under section 212(c)

be made available in deportation proceedings in which the asserted ground

for deportation is also a ground for exclusion expressly subject to waiver

under that section.” Matter of Hernandez-Casillas, supra, at 288.

Thus, it is not relevant under Hernandez-Casillas and Granados that the

respondent’s firearms offense could form a constituent element of inadmissi-

bility under section 212(a)(10) of the Act as discussed above. He is ineligible

for relief under section 212(c) of the Act because the ground of deportation

under which he has been found deportable—section 212(a)(14) [now section

241(a)(2)(C)] of the Act—does not itself have a comparable ground of exclu-

sion. Matter of Hernandez-Casillas, supra; Matter of Granados, supra. In

other words, the respondent’s firearms conviction standing alone supports a

charge of deportation under section 241(a)(14) [now 241(a)(2)(C)] of the

Act, the respondent has in fact been found deportable based on this charge,

and section 212(c) cannot waive a charge of deportability under section

241(a)(14) because there is no counterpart among the grounds of inadmissi-

bility in section 212(a). Matter of Hernandez-Casillas, supra; Matter of

Granados, supra.

C. Ineligibility for Section 212(c) Relief Due to Lack of a

Comparable Exclusion Ground is not Cured Even Though the

Alien’s Offense May Support Some Ground of Excludability

In applying the precedent represented in Granados and Hernandez-

Casillas we have previously addressed and rejected similar efforts to estab-

lish eligibility for section 212(c) relief in deportation proceedings, notwith-

standing the lack of an exclusion ground comparable to the ground of

deportation, by subsuming the respondent’s conduct or offense under some

exclusion ground. Matter of Montenegro, supra; Matter of Wadud, 19 I&N

Dec. 182 (BIA 1984).

In Wadud the respondent was charged with and found deportable under

former section 241(a)(5) of the Act, which had no comparable ground among

the section 212(a) grounds specified in section 212(c). The respondent

argued, however, that because his conviction involved moral turpitude, he

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would come within the scope of section 212(a)(9) were he to apply for admis-

sion to this country, and that he should therefore be considered eligible for

section 212(c) relief. Matter of Wadud, supra, at 185. Upon considering the

respondent’s position, the Board specifically “decline[d] to expand the scope

of section 212(c) relief in cases where the ground of deportability charged is

not also a ground of inadmissibility.” Id.

In Montenegro the respondent argued that his conviction for assault with a

firearm, for which he was found deportable under section 241(a)(2)(C) of the

Act, would also render him excludable under section 212(a)(2)(A)(i)(I) of the

Act (previously 212(a)(9)), for having been convicted of a crime involving

moral turpitude, and that section 212(a)(2)(A)(i)(I) of the Act should there-

fore be considered a comparable ground of exclusion for purposes of section

212(c) eligibility. Following Matter of Wadud, supra, the Board denied the

respondent’s claim, finding again that section 212(c) could not waive the

charge of deportability under section 241(a)(2)(C) because section

241(a)(2)(C) has no analogous ground of inadmissibility. Matter of

Montenegro, supra, at 604-05 (stating that the respondent’s argument “rela-

tive to crimes involving moral turpitude under section 212(a)(2)(A)(i)(I) of

the Act must be rejected; section 212(c) cannot waive the charge of

deportability under section 241(a)(2)(C) in the instant case because section

241(a)(2)(C) has no analogous ground of inadmissibility”).

Although the respondent’s case offers a different ground of exclusion, his

claim is fundamentally the same as those addressed and rejected in Matter of

Wadud and Matter of Montenegro and must be answered in the same way.

While the respondent could be deemed inadmissible within the meaning of

section 212(a)(10) [now 212(a)(2)(B)] of the Act based in part on his fire-

arms violation, this does not make him eligible for section 212(c) relief. The

respondent’s firearms conviction standing alone supports a charge of depor-

tation under section 241(a)(14) [now 241(a)(2)(C)], the respondent has in

fact been found deportable based on this charge, and section 212(c) cannot

waive a charge of deportability under section 241(a)(14) because there is no

counterpart among the grounds of inadmissibility in section 212(a). Matter of

Montenegro, supra; Matter of Wadud, supra; see also Komarenko v. INS, 35

F.3d 432 (9th Cir. 1994) (holding that alien was not denied equal protection

when eligibility for section 212(c) relief was denied on grounds that firearms

deportation charge and moral turpitude exclusion ground were not substan-

tially identical).

As further discussed in Matter of Montenegro, supra, this Board’s deci-

sion in Matter of Meza, 20 I&N Dec. 257 (BIA 1991), is limited to the ques-

tion of eligibility for section 212(c) relief in the case of a conviction for a

drug-trafficking aggravated felony and is based on the specific amendment to

section 212(c) regarding aggravated felonies. Meza does not alter the general

rule that section 212(c) relief is available in deportation proceedings only to

those aliens who have been found deportable under a ground of deportability

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for which there is a comparable ground of excludability. Matter of Chow, 20

I&N Dec. 647 (BIA 1993), aff’d, 9 F.3d 1547 (5th Cir. 1993); Matter of

Montenegro, supra; Matter of Hernandez-Casillas, supra.

D. No Circuit Court Has Found That Section 212(c) Waives the

Deportation Ground Based on Firearms Offenses

Finally, we note that since the Attorney General’s decision in Matter of

Hernandez-Casillas, supra, no court which has addressed the issue has held

that a section 212(c) waiver is available to waive deportability on the ground

of a firearms offense. See Gjonaj v. INS, 47 F.3d 824, (6th Cir. 1995);

Komarenko v. INS, supra; Rodriguez-Padron v. INS, 13 F.3d 1455 (11th Cir.

1994); Kin Sang Chow v. INS, 12 F.3d 34 (5th Cir. 1993); Rodriguez v. INS, 9

F.3d 408 (5th Cir. 1993); Campos v. INS, 961 F.2d 309 (1st Cir. 1992); cf.

Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir. 1993) (entry without inspec-

tion); Cabasug v. INS, supra (decided prior to Hernandez-Casillas, supra;

firearms violation).

Accordingly, we find that the respondent is ineligible for relief under sec-

tion 212(c) of the Act because he has been found deportable under a ground

of deportation which does not itself have a comparable ground of exclusion.

Matter of Hernandez-Casillas, supra; Matter of Granados, supra.

E. Bedoya-Valencia v. INS Does not Provide Basis for Section

212(c) Relief on Weapons Charge

We have also considered the decision of the Second Circuit in

Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993), and conclude that it does

not provide authority to find an alien eligible for section 212(c) relief in spite

of his deportability for a weapons conviction. In Bedoya-Valencia the Sec-

ond Circuit stated that three of the current grounds of deportation fail to sat-

isfy the requirement of having substantially equivalent grounds of exclusion:

entry without inspection under section 241(a)(1)(B), conviction of a firearms

violation under section 241(a)(2)(C), and willful failure to notify the Attor-

ney General of a change of address under section 241(a)(3)(A). The court

noted that both entry without inspection and willful failure to notify the

Attorney General of the alien’s change of address are grounds for deportation

which, as a matter of logic, cannot be grounds for exclusion. The court then

stated as follows:

Absent any Congressional indication to the contrary, we believe that coherence and consis-

tency are promoted by allowing the exercise of § 1182(c) discretion with respect to the

deportation ground of entry without inspection. . . At least with respect to entry without

inspection, a ground of deportation that could not conceivably have such an analogue [in the

exclusion grounds], there is no basis in statutory text or legislative purpose to preclude the

modest extension of the Francis rule that Bedoya-Valencia seeks on this appeal.

Bedoya-Valencia v. INS, supra, at 897.

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The court later stressed that “we undertake only to achieve coherence

regarding the impact of our prior ruling in Francis upon a ground of deporta-

tion that, by logical necessity, can have no counterpart ground of exclusion.”

Id. at 898. Accordingly, the court held that an alien deportable for entry with-

out inspection may be eligible for section 212(c) relief, and it suggested that

an alien deportable for willful failure to notify the Attorney General of the

alien’s change of address may likewise be eligible for section 212(c) relief.

In contrast, the ground of deportation based on firearms violations could

be specified as a ground for exclusion if Congress so chose, but it has not

done so. See Rodriguez-Padron v. INS, supra, at 1460; Cabasug v. INS,

supra, at 1326. The Ninth Circuit stated in Cabasug v. INS, supra, as follows:

[T]here exists no class of persons alike in carrying [the prohibited types of firearms], and

deportable or not depending on the irrelevant circumstance of whether at some previous

time they took a temporary trip out of the country. The gravamen of the equal protection

violation identified in Francis was just such a distinction without a material difference. In

the treatment of these weapons offenses, Congress has legislated no such distinction, nor

has any administrative practice created one.

Id. at 1326.

In sum, the Second Circuit in Bedoya-Valencia v. INS, supra, placed great

emphasis on the fact that entry without inspection was “a ground of deporta-

tion that could not conceivably have such an analogue” in the exclusion

grounds. Id. at 897. A similar conclusion cannot follow in the present case,

where firearms violations logically could form the basis of an exclusion

ground. We therefore do not find Bedoya-Valencia controlling in the present

case.

IV. SUMMARY

Three convictions were alleged against the respondent in the Order to

Show Cause. Two convictions involved controlled substances, and the third

was for unlawful possession of a sawed-off shotgun. On each of the three

convictions, the respondent was sentenced to confinement, and then the exe-

cution of the sentence to confinement was suspended. In answer to the first

issue presented by the circuit court on remand, we find that a sentence to con-

finement, the execution of which is subsequently suspended, is a sentence to

confinement “actually imposed” within the meaning of section 212(a)(10) of

the Act, and its successor provision at section 212(a)(2)(B) of the Act. Matter

of Castro, supra. As the aggregate sentences “actually imposed” against the

respondent totalled 5 years or more, he could be deemed inadmissible within

the meaning of section 212(a)(10) [now 212(a)(2)(B)] of the Act, with one of

the constituent convictions being his firearms violation.

However, with respect to the second issue on remand, a finding that the

respondent is subject to inadmissibility under section 212(a)(10) [now

212(a)(2)(B)] of the Act, based in part on his firearms offense, does not

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establish a basis for finding him eligible for relief under section 212(c) of the

Act. The operation of section 212(c) of the Act waives grounds of exclusion

or deportation, not the underlying offenses of those grounds. In deportation

proceedings, pursuant to the Attorney General’s decision in Matter of

Hernandez-Casillas, supra, by which this Board is bound, section 212(c)

cannot waive a ground of deportation which does not have an analogous

ground of exclusion. It is not relevant under Hernandez-Casillas that the

respondent’s firearms offense could support both an exclusion ground and a

deportation ground. Rather, the respondent has been found deportable under

section 241(a)(14) [now 241(a)(2)(C)] of the Act, and because this ground of

deportation has no corresponding ground of exclusion, the respondent is not

eligible for relief under section 212(c) of the Act. See also Matter of

Montenegro, supra; Matter of Wadud, supra.

As noted, since the Attorney General’s decision in Matter of

Hernandez-Casillas, supra, no court which has addressed the issue has held

that a section 212(c) waiver is available to waive deportability on the ground

of a firearms offense. We find that the decision of the circuit court in

Bedoya-Valencia v. INS, supra, is not controlling for the reasons stated

above.

We therefore uphold the decision of the Immigration Judge that the

respondent’s deportability under section 241(a)(14) [now 241(a)(2)(C)] of

the Act, for which there is no analogous ground of exclusion, renders the

respondent ineligible for a section 212(c) waiver. Accordingly, the appeal

will be dismissed.

ORDER: The appeal is dismissed.

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