CERNA

Interim Decision #3161

MATTER OF CERNA

In Deportation Proceedings

A-30257519

Decided by Board October 7, 1991

(1)An applicant for relief under section 212(c) of the Immigration and Nationality Act,

8 U.S.C. § 1182(c) (1988), must be a lawful permanent resident of the United States

and must have a lawful unrelinquished domicile of 7 consecutive years.

(2)Barring a subsequent reversal of a respondent's deportability finding by an appellate

court or administratively, an alien's status as a lawful permanent alien ends upon the

entry of an administratively final order of deportation.

(3)A respondent who is subject to an administratively final order of deportation cannot

successfully move to reopen deportation proceedings to again apply for relief under

section 212(c) of the Act as such a respondent is no longer a lawful permanent resident

of this country.

(4)Authority from one circuit is not binding in another and the Board declines to follow

the holding in Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), outside the jurisdiction of

the United States Court of Appeals for the Second Circuit.

(5)Motions to reopen and motions to reconsider are separate and distinct motions with

different requirements—a motion to reconsider requests that the original decision be

reexamined in light of additional legal arguments, a change of law, or an argument or

aspect of the case that was overlooked, while a motion to reopen seeks to reopen

proceedings so that new evidence can be presented and a new decision entered on a

different factual record, normally after a further evidentiary hearing.

(6)The Board of Immigration Appeals has not held that a respondent who has been

denied relief under section 212(c) of the Act is precluded from having the original

decision reconsidered.

(7)The Board is not favorably disposed to the practice of waiting until the conclusion of

the administrative appeal process to file a motion that seeks to offer additional

evidence regarding the matter previously in issue.

(8)The Board has not held that the existence of outstanding equities creates a right to

have the consequences resulting from particularly serious criminal misconduct waived

or that such equities compel a grant of discretionary relief; rather, the Board has noted

just the opposite (i.e., that the nature of the adverse factor or factors may ultimately be

determinative of whether relief under section 212(c) of the Act is granted).

CHARCie.

Order: Act of 1952—Sec. 241(a)(11) (8 U.S.C. § 1251(a)(11))—Convicted of controlled

substance violation

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ON BEHALF OF RESPONDENT: Helena Tetzeli, Esquire

2650 S.W. 27th Avenue, 2nd Floor

Miami, Florida 33133

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated March 25, 1987, an immigration judge found

the respondent deportable as charged and denied his application for

relief from deportation pursuant to section 212(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(c) (1982), in the exercise of

discretion. The respondent, who had conceded his deportability,

appealed solely from the denial of his request for relief under section

212(c). The respondent's appeal was dismissed by this Board on July

26, 1990. On January 23, 1991, the respondent, through new counsel,

filed a "Motion to Reconsider and/or Reopen and Remand." The

motion will be denied.

We note initially that although styled as both a motion to reconsider

and a motion to reopen, the motion before us is, in fact, solely a

motion to reopen deportation proceedings. The motion seeks the

opportunity to submit evidence that was not previously a matter of

record and seeks a further opportunity to pursue a request for relief

under section 212(c) of the Act on the supplemented record. There is

no argument presented that alleges any specific error in our prior

decision in this case. In any event, even if the respondent's submission

is viewed in part as a motion to reconsider, we decline to reconsider

our July 26, 1990, decision as we find nothing in the motion that

would cause us to reevaluate that decision on the factual record that

was then before us.

As noted, the respondent is seeking to have his deportation

proceedings reopened so that he can present what he submits is new

evidence and again pursue an application for relief under section

212(c) of the Act. However, the respondent cannot successfully move

to reopen proceedings to again apply for relief under section 212(c) as

he can no longer establish prima facie eligibility for such relief. An

applicant for relief under section 212(c) of the Act must be a lawful

permanent resident of the United States and must have a lawful

unrelinquished domicile of 7 consecutive years. See section 212(c) of

the Act; Gonzales v. INS, 921 F.2d 236, 238 (9th Cir. 1990). This

respondent is no longer a lawful permanent resident of this country as

his status as such ended upon the entry of the final administrative

order of deportation by this Board. See section 101(0(20) of the Act, 8

U.S.C. § 1101(a)(20) (1988); Rivera v. INS, 810 F.2d 540 (5th Cir.

1987); Matter of Lok, 18 I&N Dec. 101 (BIA 1981), aff'd on other

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grounds, 681 F.2d 107 (2d Cir. 1982); see also 8 C.F.R. §§ 3.1(d)(2),

3.37, 242.20, 243.1 (1991). For the reasons we enunciated in Matter of

Lok, supra, barring a reversal on the merits of the respondent's

deportability finding by an appellate court or administratively, the

respondent lost his status as a lawful permanent resident on July 26,

1990. 1 Thus, he is no longer statutorily eligible for relief under section

212(c). Gonzales v. INS, supra. Accordingly, the respondent's motion

to reopen and remand will be denied.

We note that the United States Court of Appeals for the Second

Circuit recently found a decision of this Board denying reopening of

deportation proceedings for this same reason to be "arbitrary and

capricious." Vargas v. INS, 938 F.2d 358, 361-63 (2d Cir. 1991). The

Second Circuit, in reversing our decision and in disagreeing with the

Ninth Circuit's analysis in Gonzales v. INS, supra, concluded that a

respondent's eligibility for section 212(c) relief, once established,

survives a finding of deportability. The court ruled that, even if a

respondent no longer is a lawful permanent resident of the United

States, he CAE successfully move to reopen proceedings to again apply

for relief under section 212(c) so long as his eligibility for such relief

had once been established. Authority from one circuit is not binding in

another, however, and we respectfully decline to follow the holding in

Vargas v. INS outside the jurisdiction of the Second Circuit for the

following reasons. See State of Ga. Dep't of Medical Assist. v. Bowen,

846 F.2d 708, 710 (11th Cir. 1988).

As regards Vargas v. INS, supra, we note that the basis for our

conclusion in that case, that a respondent who has lost his lawful

permanent resident status is not eligible to have deportation proceed-

ings reopened to again apply for relief under section 212(c), was not, as

stated by the court, simply supported by one "phrase" in Matter of

Lok, supra. Vargas v. INS, supra, at 360. We also would not agree that

we "did not present [our] decision [in Vargas] as an interpretation of

statutory provisions." Id. at 363. Our decision in that case was based

(as is our decision today) on the rationale we set forth in Matter of Lok,

which in turn was founded on our interpretation of sections 101(a)(20)

and 212(c) of the Act.

Moreover, contrary to the holding in Vargas v. INS, our conclusions

in this regard do not result in an "[i]mplicit [a]mendment" of the

1 We would also deem the respondent's lawful domicile in this country to have ended

on the same date that his status as a lawful permanent resident ended. See Appendix.

However, the precedent decisions of the United States Court of Appeals for the Eleventh

Circuit that arc controlling in this case hold that the respondent's lawful domicile ended

with the issuance of the Order to Show Cause and Notice of Hearing (Form 1-221).

Ballbe v. INS, 886 F.2d 306 (11th Cir. 1989), cert. denied, 495 U.S. 929 (1990); Marti-

Xiques v. INS, 741 F.2d 350 (11th Cir. 1984).

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regulatory provisions regarding motions to reopen set forth in 8 C.F.R.

§§ 3.2 and 3.8 (1991). Vargas v. INS, supra, at 361. First, the

regulations certainly do not create an express right to have proceedings

considered for reopening in order to further pursue applications for

relief under section 212(c) of the Act. In fact, as the Supreme Court

noted in INS v. Jong Ha Wang, 450 U.S. 139 (1981), "The present

regulation is framed negatively; it directs the Board not to reopen

unless certain showings are made. It does not affirmatively require the

Board to reopen proceedings under any particular condition." Id. at

144 n.5. Moreover, the controlling regulations are not "effectively

amend[ed]" in this context—or in any other—by the application of the

rule that a motion to reopen deportation proceedings to apply for relief

will be denied in the absence of a showing of prima facie eligibility for

the relief in question. Vargas v. INS, supra, at 361.

Further, in Vargas v. INS, the court stated that our "application of

the Lok rule to motions to reconsider Section 212(c) relief has been

erratic. Id. at 362. (Emphasis added.)" The court also stated that a

"motion to reopen or to reconsider is not a request for a new decision_

Rather, it permits a decisionmaker to reevaluate the original deci-

sion." Id. In our view, both of these statements inappropriately

entwine motions to reopen and motions to reconsider, which "are two

separate and distinct motions with different requirements." Chudshe-

vid v. INS, 641 F.2d 780, 783 (9th Cir. 1981); see also Sanchez v. INS,

707 F.2d 1523, 1529 (DC. Cir. 1983). We have never held that a

respondent who has been denied relief under section 212(c) is

precluded from having the original decision reconsidered. A motion to

reconsider asserts that at the time of the Board's previous decision an

error was made. It "questions the Board's decision for alleged errors in

appraising the facts and the law." 1 C. Gordon & S. Mailman,

Immigration Law and Procedure § 3.0517](a], at 3-61 (rev. ed. 1991).

When we reconsider a decision, we are in effect placing ourselves back

in time and considering the case as though a decision in the case on the

record before us had never been entered. If the respondent was eligible

for relief at the time the original decision was entered, then in

reconsidering the decision we would treat his status as that which it

had been at the time of the initial decision. The very nature of a

motion to reconsider is that the original decision was defective in some

regard. A motion to reopen proceedings, however, is a fundamentally

different motion.2 See Sanchez v. INS, supra; Chudshevid v. INS, supra.

2 A motion to reconsider "is a request that the Board reexamine its decision in light of

additional legal arguments, a change of law, or perhaps an argument or aspect of the case

which was overlooked, while Cal motion to reopen is usually based upon new evidence or

a change in factual circumstances." Hurwitz, Motions Practice Before the Board of

Immigration Appeals, 20 San Diego L Rev. 79, 90 (1982) (footnotes omitted).

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It does not contest the correctness of (or simply request a reevaluation

of) the prior decision on. the previous factual record. Rather, a motion

to reopen proceedings seeks to reopen proceedings so that new

evidence can be presented and so that a new decision can be entered,

normally after a further evidentiary hearing. We fmd nothing either

inconsistent or illogical in holding that a respondent can move for

reconsideration of a decision, which was entered while he was a lawful

permanent resident and which denied relief under section 212(c),

based on an argument that that decision was incorrectly entered, while

a respondent who has lost his status as a lawful permanent resident

cannot thereafter successfully move to reopen proceedings to have a

different application for relief under section 212(c) adjudicated on a

different factual record. Rather, we would find it inconsistent to

conclude that an alien who is no longer a lawful permanent resident of

the United States could have proceedings reopened to apply for relief

only available to lawful permanent residents.

Finally, as regards Vargas v. INS, supra, to our knowledge, we have

not been "erratic" in our application of the "Lok rule" to motions to

reopen proceedings to apply for section 212(c) relief. Id at 362. In

view of the sheer number of decisions we enter and the difficulty, as a

practical matter, of attempting to review every uost Lok Board

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decision involving a motion to reopen proceedings to further pursue

an application for relief under section 212(c), we would be hesitant to

state that we have never granted a motion to reopen proceedings in

such circumstances, just as we would not state that we have never

entered an erroneous decision in any other context. The fact that such

decisions occur is the reason that provisions for reconsideration exist.

We are not aware of any such decisions, however, and note that none

was identified in Vargas v. INS.

Even were we to apply the Second Circuit's rationale to this case, we

would deny the respondent's motion. We note initially that we are not

favorably disposed to the practice of waiting until the conclusion of the

administrative appeal process to file a motion that seeks to offer

additional evidence regarding the matter previously in issue. Here, as

regards the most significant of the respondent's new equities, we note

that his marriage to a United States citizen occurred less than 1 month

after the filing of his appeal from the adverse decision of the

immigration judge issued on March 25, 1987, and his United States

citizen child was born in November 1987. There is no explanation

provided for the failure to submit a motion proffering this additional

evidence while the respondent's administrative appeal was pending.

In any event, wholly aside from its timing, and considering both the

previous record and the new matters regarding the respondent's

familial and community ties, his business venture, his property ties,

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Interim Decision #3161

and his completion of parole, we still would not grant this motion in

the exercise of discretion. We are particularly sympathetic to the

hardship that the respondent's deportation may cause his 4-year-old

child and his United States citizen wife (although the significance of

the marriage and the possible hardship to the respondent's wife is

somewhat diminished by the fact that the marriage occurred after the

respondent had been found deportable and his request for discretion-

ary relief had already been denied by the immigration judge). The

respondent does have outstanding equities, as is often the case with

applicants for relief under section 212(c) of the Act. In describing how

we exercise our discretion, we have stated that, absent outstanding or

unusual equities, relief under section 212(c) will be denied in the

exercise of discretion in cases where there are particularly adverse

factors present. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

However, we have never held that the existence of such equities creates

a right to have the consequences resulting from serious criminal

misconduct waived. Nor do such equities compel a grant of discretion-

ary relief. Rather, we have noted just the opposite (i.e., that the nature

of the adverse factor or factors may ultimately be determinative of

whether relief under section 212(c) is granted). See Matter of Buscerni,

19 I&N Dec. 628, 634 (BIA 1988); Matter ofMaritt, 16 I&N Dec. 581,

584 85 (BIA 1978). There are drug offenses of varying degrees of

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seriousness and in our view this respondent was convicted of a

particularly serious drug trafficking offense. His 1984 conviction

resulted from his purchase and importation into the United States of

half a kilogram of cocaine. He personally bought the cocaine in Bolivia

and had his shoes modified to conceal the drugs in order to smuggle

them into this country. Moreover, the immigration judge found the

respondent's credibility lacking in his testimony regarding the particu-

lars of this crime and regarding his previous criminal record. 3 The

respondent can have been under no illusion of the seriousness with

3 The respondent testified that he had been convicted of possession of marihuana in

1975 and that he pled guilty to a charge of carrying a concealed weapon in 1974 or 1975.

As regards this latter matter, he testified as follows: He was driving his mother's car and

a friend, who had a gun, "went inside a car to ... to get some tapes that belonged to

him or something like that." They were both arrested. His friend was found not guilty,

but the respondent was charged with carrying a concealed weapon because the weapon

was in his car. He pled guilty because he knew that he was going to get probation and he

wanted to avoid "wasting more time and money" by going to trial. The record indicates

that he was adjudicated guilty of possession of marihuana on July 7, 1975, and received

a suspended sentence. Some 6 months later, he was placed on probation for carrying a

concealed weapon, carrying a firearm without a license, and breaking and entering an

automobile. The adjudication of guilt was withheld in this latter case, leaving the

respondent without a conviction under Florida law, and his probation was terminated

on October 18, 1977.

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which drug trafficking is viewed. While drug trafficking crimes of this

nature are not unique in the gravity with which we view them, there

are few adverse matters we view as more serious. We have never

held—and certainly do not hold today—that there are no circum-

stances under which we might grant relief in the face of adverse

matters of the nature present in this case. However, even considering

the additional factors asserted in this motion, the case before us is

simply not one in which we are satisfied that a favorable exercise of

our discretion is warranted. The responsibility for the hardships and

difficulties that this respondent and his family may face rest squarely

on the respondent's shoulders.

Accordingly, the respondent's "Motion to Reconsider and/or Re-

open and Remand" will be denied in the exercise of discretion as well

as on grounds of statutory eligibility.

ORDER: The respondent's motion to reopen and reconsider is

denied.

APPENDIX

We note that a principal - mission of the Board of Immigration

Appeals is to ensure as uniform an interpretation and application of

this country's immigration laws as is possible. At times achieving this

goal is beyond our control as our decisions are reviewable in federal

court and we ordinarily apply the law of a circuit to the cases that arise

within that circuit. We certainly acknowledge the benefit to the

adjudication process of having our decisions thus reviewable, particu-

larly in view of the profound nature of the rights often at issue in the

cases we review. Moreover, assistance in achieving some measure of

uniformity is provided by the "great deference" a court ordinarily

must accord our interpretation of the governing statute. Udall v.

Tallman, 380 U.S. 1, 16 (1965); see also INS v. Cardoza-Fonseca, 480

U.S. 421, 447-48 (1987); Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-45 (1984). In this context,

however, the history subsequent to our decision in Matter of Lok, 18

I&N Dec. 101 (13IA 1981), was rather disheartening.

We recognized in Matter of Lok what, in our view, is the

inextricable relationship between the issue of when lawful permanent

resident status terminates and when lawful unrelinquished domicile

ends for section 212(c) purposes (i.e., it would seem to make little

sense to conclude that an alien's lawful domicile has ended prior to the

point at which he loses his status as a "lawful permanent resident,"

just as it would seem to make little sense to conclude that lawful

domicile continues beyond the point that a final order of deportation

has been entered). We recognized that arguments could be made in the

deportation context as to various stages at which an alien's status as a

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lawful permanent resident could be considered to have "changed"

within the meaning of section 101(a)(20) of the Act. For reasons we

articulated in Matter of Lok, and which we will not reiterate here, we

concluded that the most appropriate rule was that an alien's status as a

lawful permanent resident ends with an administratively final order of

deportation, barring a subsequent reversal on the merits of the finding

of deportability by a court or administratively as a result of a motion.

Our interpretation of the law established a rather straightforward test

in an area of the law which is particularly contorted, even in the

context of an Immigration and Nationality Act that in simpler times

was characterized as a "never-never land ... where plain words do not

always mean what they say." Yuen Sang Low v. Attorney General, 479

F.2d 820, 821 (9th Cir.), cert. denied, 414 U.S. 1039 (1973).

Subsequent to our decision in Lok, various courts of appeals

considered the issues we addressed therein (although not always

addressing the relationship between the issue of when an alien loses his

lawful permanent resident status and when his lawful unrelinquished

domicile ends). We recognize that our perspective may be somewhat

colored, as it was our decisions under review, but we arc not left with

the sense in many instances that deference, substantial or otherwise,

was accorded our interpretation of the relevant laws and regulations.

Initially, the Second Circuit, in reviewing our decision in the Lok

case itself, noted its view that the respondent's lawful domicile may

have ended "even earlier" than the point specified in our decision (i.e.,

it "probably" ended when the respondent conceded deportability and

"no appeal was taken challenging the finding of deportability"). Lok v.

INS, 681 F.2d 107, 110 (2d Cir. 1982).' The premise underlying this

conclusion was that the respondent's order of deportability had

"probably" become final at that point. We note, however, that—

contrary to this premise—the immigration judge's order of deportabil-

ity had not become administratively final, as the respondent did

appeal from the immigration judge's decision. Under the controlling

regulations then in effect, if an immigration judge's "order" was

appealed, it was not final. 8 C.F.R. § 242.20 (1982). The "order" that

I Thus, in some respects, the Second Circuit takes a more restrictive interpretation of

the laws in this area than do we, while in others, the court takes a far more expansive

interpretation. That is, it would appear that the Second Circuit would cut off a lawful

permanent resident's ability to initially establish eligibility for relief under section 212(e)

at an earlier point than we would. However, if eligibility has once been established, the

court would recognize no finality (other than the "physical deportation" of the alien

from the United States) to an alien's right to seek reopening of deportation proceedings

to further pursue an application for such relief even beyond the point that a loss of

lawful permanent resident status clearly has occurred. See Vargas v. INS, 938 F.2d 358,

363 (2d Cir. 1991).

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was referred to was "the order" in its entirety, not simply the specific

aspect of the order that was challenged on appeal. See 8 C.F.R.

§ 242.18(a), (c) (1982); see also 8 C.F.R. §§ 3.1(d)(2); 3.37; 242.20

(1991) (which make clear that it is "the decision" that either is or is

not final, rather than its individual components).

Thereafter, the Eleventh Circuit in its first decision in Marti xiques

-

v. INS, 713 F.2d 1511 (11th Cir. 1983), concluded that a respondent's

lawful domicile did not terminate when we rendered a decision

dismissing the respondent's appeal from an immigration judge's denial

of discretionary relief because the respondent's presence could not be

deemed unlawful until the administrative denial of discretionary relief

was upheld on appeal. This decision was in turn followed by the Ninth

Circuit's decision in Wall v. INS, 722 F.2d 1442 (9th Cir. 1984), in

which it was held that the respondent's lawful domicile continued

pending judicial consideration of his petition for review, but only

because that petition challenged the respondent's deportability find-

ing. The Ninth Circuit did not find it determinative whether or not the

challenge to the administrative finding of deportability was ultimately

successful. Next, on rehearing, the Eleventh Circuit vacated its prior

decision in Marti-Xiques and held that the date that the Order to Show

Cause and Notice of Hearing (Form I-221) is issued is the appropriate

point at which to conclude that eligibility for section 212(c) relief is

determined. Marti-Xiques v. INS, 741 F.2d 350 (11th Cir. 1984). This

decision did not specifically address the issue of whether a respondent

is deemed to have lost his status as a lawful permanent resident by the

mere issuance of the Order to Show Cause or, whether such status is

not lost at that point, but lawful domicile ends nonetheless. The Ninth

Circuit then held in Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir.

1985), that when "an alien concedes his deportability or fails to raise a

challenge to an order of deportation, he may no longer be said to

harbor a 'lawful intent' to remain in this country even if the INS fails

to take immediate steps to expel him beyond our borders." Id. at 736.

The court did not find it necessary to determine if one's "lawful

intent" terminates when proceedings commence or when the deporta-

tion order becomes final. Id.

The Fifth Circuit was the next to consider the issues raised in

Matter of Lok. The Fifth Circuit initially ruled that an alien against

whom a final administrative order had been entered was nonetheless

entitled to claim his lawful permanent resident status for the purpose

of filing a motion to reopen deportation proceedings to apply for relief

under section 212(c) based in part on its conclusion that the Board

decision in Matter of Lok would create a "Catch-22" and "essentially

make[] the discretionary relief provided by section 212(c) unavailable

in the deportation context." Rivera v. INS, 791 F.2d 1202, 1205 (5th

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Cir. 1986). On reconsideration, however, the Fifth Circuit concluded

that our decision in Lok was entitled to "great deference" and that our

conclusion in that case was a "sensible one." Rivera v. INS, 810 F.2d

540, 542 (5th Cir. 1987). In its 1987 decision, the Fifth Circuit noted

that the Lok rationale did not create the "Catch-22" that it had been

concerned about in its initial decision. Id. at 541. Finally, in 1989, the

Eleventh Circuit reaffirmed its position that the date for determining

whether an alien has maintained his lawful domicile for section 212(c)

purposes is the date of issuance of the Order to Show Cause.. Ballbe v.

INS, 886 F.2d 306 (11th Cir. 1989), cert. denied, 495 U.S. 929 (1990).

Thus, depending upon where a case arises, the point at which a

respondent must establish his eligibility for section 212(c) relief can be

as early as the date of issuance of the Order to Show Cause (which may

be long before the Immigration and Naturalization Service actually

commences deportation proceedings by the filing of the Order to Show

Cause with the Office of the Immigration Judge) or as late as the date

of a circuit court's dismissal of a petition for review, if that petition

involves an issue of deportability.

If nothing else is clear, we believe this succession of decisions

reflects the accuracy of our original view expressed in Matter of Lok,

supra, in 1981 that there are "various stages within the deportation

process at which the status of an alien 'lawfully admitted for

permanent residence' may be considered to have changed within the

meaning of section 101(a)(20) of the Act." Id. at 105. We also believe

that these decisions, considered together, reflect that this is not an

issue in which there is an obviously correct or incorrect answer.

Perhaps we should take some solace in the fact that at least one circuit

views our analysis in Matter of Lok as sensible. And, we note that the

diversity of opinions here does not create any unmanageable burden

on the adjudication process itself—we simply must assure that the

right test is applied in the right circuit. At times that can pose a

difficulty as a petition for review is not always filed in the same circuit

in which the deportation proceeding was held, but this certainly is not

a unique circumstance. Situations like this, however, do create a very

real problem. The laws that we administer and the cases we adjudicate

often affect individuals in the most fundamental ways. We think that

all would agree that to the greatest extent possible our immigration

laws should be applied in a uniform manner nationwide, particularly

where the most significant aspects of the law are in issue. Here,

however, we are left with a patchwork application of the law—with the

most profound decisions affecting aliens (all of whom in this context

have been lawful permanent residents of the United States) tied to the

mere happenstance of where their cases arise geographically.

408