MEDRANO

Interim Decision #3138

MATTER OF MEDRANO

In Deportation Proceedings

A-29076886

Decided by Board September 10, 1990

Decided by Board February 5, 1991

(1) The status of a lawful temporary resident alien who commits a deportable offense

must be terminated pursuant to section 245A(b)(2) of the Immigration and Nationali-

ty Act, 8 U.S.C. § 1255a(b)(2) (1988), as a condition precedent to the commencement

of deportation proceedings.

(2) A motion to reconsider which is based on a legal argument that could have been

raised earlier in the proceedings will be denied.

CHARGE:

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

substance violation

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Pro se Janice B. Neetenbeek

General Attorney

David Dixon

Appellate Counsel

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

Opinion: Morris, Board Member.

BEFORE THE BOARD

(September 10, 1990)

In a decision dated March 15, 1990, the immigration judge entered

an order terminating the respondent's deportation proceedings "with-

out prejudice to the Immigration Service to reinstitute deportation

proceedings at such time as the Respondent's lawful temporary

resident status has properly been terminated," and the immigration

judge certified his decision to the Board pursuant to 8 C.F.R. §§ 3.1(c)

and 3.7 (1990). The decision of the immigration judge will be

affirmed.

The respondent is a 26-year-old native and citizen of Mexico. He

entered the United States without inspection on March 25, 1980. On

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March 24, 1988, the respondent was granted lawful temporary resident

status pursuant to section 245A(a) of the Immigration and Nationality

Act, 8 U.S.C. § 1255a(a) (1988). On October 6, 1989, the Immigration

and Naturalization Service issued an Order to Show Cause, Notice of

Hearing, and Warrant for Arrest of Alien (Form 1 -221S) against the

respondent, charging that he had been convicted of delivery of cocaine

in violation of the Texas Penal Code on October 1, 1989, and that he

was consequently deportable pursuant to section 241(a)(11) of the Act,

8 U.S.C. § 1251(a)(11) (1988). The respondent appeared pro se for a

deportation hearing on October 24, 1989. After noting that the

respondent had been granted temporary resident status under the

Immigration Reform and Control Act of 1986, Pub. L. No. 99-603,

100 Stat. 3359, the immigration judge asked the Service attorney to

submit a brief addressing the issue of whether he had the authority to

proceed to a determination of the respondent's deportability in the

absence of any evidence that the respondent's temporary resident

status had been terminated.

The respondent's deportation hearing was continued pending the

Service's submission of a brief regarding this question. In its brief

submitted to the immigration judge, the Service contended that

because it has exclusive jurisdiction over applications for temporary

residence pursuant to section 245A(a) of the Act, the immigration

judge could not make inquiries regarding the respondent's temporary

resident status and had to "proceed to the merits of the deportation

proceeding." The immigration judge disagreed. He reviewed the Act's

provisions concerning termination of temporary residence, as well as

the regulations implementing the termination procedure, and he

concluded that he could not conduct the respondent's deportation

hearing until the Service established that his temporary resident status

had been terminated. The immigration judge then certified his

decision to the Board.

The issue which this case presents is whether the Service is required

to terminate, as a condition precedent to the commencement of

deportation proceedings, the lawful temporary resident status of an

alien who commits a deportable offense after he has acquired

temporary residence in this country. At section 245A(b)(2), the Act

provides:

The Attorney General shall provide for termination of temporary resident status

granted an alien under subsection (a)—

(A)if it appears to the Attorney General that the alien was in fact not eligible for

such status;

(B)if the alien commits an act that (i) makes the alien inadmissible to the United

States as an immigrant, except as otherwise provided under subsection (d)(2), or (ii)

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is convicted of any felony or three or more misdemeanors committed in the United

States; or

(C) at the end of the thirty-first month beginning after the date the alien is granted

such status, unless the alien has filed an application for adjustment of such status

pursuant to paragraph (I) and such application has not been denied.

The respondent is charged with having been convicted of a drug-

trafficking felony, and he is accordingly subject to having his

temporary resident status terminated pursuant to section

245A(b)(2)(B) of the Act.

In accordance with the statutory mandate that "[t]he Attorney

General shall provide for termination of temporary resident status"

for specified aliens, the Service has promulgated regulations providing

for the termination of an alien's temporary residence. See 54 Fed. Reg.

6504, 6511 (1989). These regulations have been codified at 8 C.F.R.

§ 245a.2(u) (1990).

The regulation which sets forth the procedure for the termination of

temporary resident status requires that the Service issue a Notice of

Intent to Terminate to the alien; that the alien be given 30 days to

submit evidence in response to the termination charge; and that the

Service notify the alien of an adverse decision giving reasons for that

determination. 8 C.F.R. § 245a.2(u)(2) (1990). This regulation also

provides that an alien may appeal an adverse decision to the Service's

Administrative Appeals Unit within 30 days of the service of the

termination decision. Id.; see also 8 C.F.R. § 103.3(a)(2)(i) (1990).

Furthermore, the regulations written by the Service regarding

termination of temporary residence clearly contemplate that the

termination process will precede the commencement of deportation

proceedings against an alien:

Termination of the status of any alien previously adjusted to lawful temporary

residence under section 245A(a) of the Act shall act to return such alien to the

unlawful status held prior to the adjustment, and render him or her amenable to

exclusion or deportation proceedings under section 236 or 242 of the Act, as

appropriate.

8 C.F.R. § 245a.2(u)(4) (1990) (emphasis added).

On appeal, the Service has indicated that its present position is that

a lawful temporary resident who commits an offense for which he

becomes subject to deportation from the United States must have his

temporary resident status terminated prior to the institution of

deportation proceedings against him. By virtue of its position on

appeal, the Service has removed its opposition to the decision of the

immigration judge. Because the Service apparently intends to termi-

nate, prior to the commencement of deportation proceedings, the

temporary resident status of all aliens whose cases arise in the same

procedural posture as the respondent's, we find no reason to disturb

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the immigration judge's decision in this case. Accordingly, the decision

below, terminating the respondent's deportation proceedings because

the Service failed to present evidence to establish that the respondent's

temporary residence had been terminated, will be affirmed.

ORDER: The decision of the immigration judge is affirmed.

FURTHER ORDER: The record is returned to the Office of

the Immigration Judge.

BEFORE THE BOARD

(February 5, 1991)

The Immigration and Naturalization Service has filed a motion to

reconsider the Board of Immigration Appeals' decision dated Septem-

ber 10, 1990, in which we affirmed the immigration judge's decision.

In a decision dated September 27, 1990, the Board denied the

Service's. motion for a 30-day stay of the execution of the decision

affirming the immigration judge. The motion to reconsider will now be

denied_

In a memorandum dated June 14, 1990, the Board asked the Service

for its opinion concerning the issue of whether an alien who commits a

deportable offense after he has acquired temporary residence can "be

found deportable or deported" without his temporary resident status

being terminated pursuant to section 245A(b)(2)(B) of the Act. On July

6, 1990, the Service responded to the Board's query as follows: "It is

the Service position that a respondent in these circumstances must

first have his temporary LPR status terminated pursuant to 8 C.F.R.

Sec. 245a.2(u)." The Service did not indicate in its response that it had

any disagreement with the immigration judge's decision. The Board

subsequently entered the decision affirming the immigration judge's

order which had terminated the respondent's deportation proceedings.

In its motion to reconsider, the Service raises two arguments. It

contends first that the Board's holding conflicts with the requirements

of the Act regarding aliens who have been convicted of an "aggravated

felony" as defined in the Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, 102 Stat. 4181. The Service also contends that immigration

judges lack jurisdiction to question a Service decision to commence

deportation proceedings against an alien.

We will not address the merits of the Service's arguments because

no adequate explanation has been offered for its failure to raise these

arguments earlier in the proceedings. Arguments for consideration on

appeal should all be submitted at one time, rather than in piecemeal

fashion. This is particularly true in the instant case, where the Board

specifically solicited the Service's views concerning the issues present-

ed. The Service was granted a reasonable period of time in which to

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consider fully the implications of the issues and to develop its position

on appeal.

Moreover, we note that in its argument concerning the Act's

"aggravated felony" provisions, the Service has cited Board decisions

which were not designated as precedent decisions. The regulations

provide that a motion to reconsider "shall be supported by such

precedent decisions as are pertinent." 8 C.F.R. § 3.8(a) (1990).

Decisions which the Board does not designate as precedents are not

binding on the Service or the immigration judges in cases involving the

same or similar issues. See 8 C.F.R. § 3.1(g) (1990). We therefore do

not consider the Service's reliance on Board decisions which were not

designated as precedent decisions to be a persuasive ground for

reconsideration. We note too that the argument in the Service's

motion, that an immigration judge has no authority to review a Service

decision to commence proceedings against an alien, was initially raised

by the general attorney in a trial brief. The Service abandoned this

argument, however, when it submitted its previous appellate position,

which appeared to endorse the decision of the immigration judge.

Accordingly, because the arguments in the Service's motion were

not raised when it submitted its position on appeal, and because the

Service has not provided an adequate explanation for its failure to

raise these arguments at an earlier stage of the proceedings, the motion

to reconsider will be denied.

ORDER: The motion to reconsider is denied.

DISSENTING OPINION: James P. Morris, Board Member

I respectfully dissent

Our decision of September 10, 1990, was based upon the fact that

the Immigration and Naturalization Service had removed its opposi-

tion to the decision of the immigration judge. Because the Service

apparently intended to terminate, prior to the commencement of

deportation proceedings, the temporary resident status of all aliens

whose cases arise in the same procedural posture as the respondent's,

we found no reason to disturb the immigration judge's decision. The

Board's decision was reasonable under those circumstances. Neverthe-

less, I believe that the immigration judge's decision misconstrued the

applicable regulation. The Service has now filed a motion to reconsid-

er and has indicated its opposition to the construction of the regulation

applied by the immigration judge.

In its decision on the motion to reconsider the Board chooses to

avoid the merits of the issue because the Service has not adequately

explained why the arguments made by the Service in its motion were

not raised earlier in the proceedings. The Board, therefore, has decided

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to deal with the case on the basis of procedural failures by the Service.

Yet, if these failures are conceded, they do not preclude the Board

from addressing the issue before it, i.e., must the status of a lawful

temporary resident be terminated before the initiation of deportation

proceedings on grounds of deportability arising subsequent 'to the

acquisition by the alien of such status? Since the Service has moved to

reconsider and has now expressed its opposition to the construction

given to the regulation by the immigration judge, we now have an

opportunity to correct what I perceive to be error by the immigration

judge.

I would not rely on the arguments advanced by the Service in

support of its motion to reconsider. Rather, I would construe the

applicable regulation in a reasonable way, with the result that

termination of lawful temporary resident status prior to the initiation

of deportation proceedings would not be required in this case.

The regulation, 8 C.F.R. § 245a.2(u)(4) (1990), provides as follows:

Return to unlawful status after termination.

Termination of the status of any alien previously adjusted to lawful temporary

residence under section 245A(a) of the Act shall act to return such alien to the

unlawful status held prior to the adjustment, and render him or her amenable to

exclusion or deportation proceedings under section 236 or 242 of the Act, as

appropriate_

Itis apparent from the language of the regulation that a person

whose temporary status has been terminated returns to his former

unlawful status and, of course, he or she is then amenable to exclusion

or deportation proceedings on the basis of that unlawful status. The

regulation does not say, however, that in the absence of a termination

of temporary status, the alien is immune from deportation or exclusion

proceedings. Such an intent would be a clear departure from the

treatment given to lawful permanent residents who are deportable. I

would require that any such intent be clearly manifest in the regulation

and would not impose a requirement of termination on the basis of an

inference that might be drawn from the provision that aliens whose

temporary resident status has been terminated are subject to exclusion

or deportation proceedings.

The regulation says nothing about - an alien who commits a

deportable offense while in lawful temporary resident status. The

regulation does not require that such status be terminated in order to

initiate deportation proceedings on the basis of a ground of deporta-

tion arising after the attainment of lawful temporary resident status.

To impose such a requirement is to place a higher value on lawful

temporary resident status than is accorded to the status of a lawful

permanent resident. Section 246 of the Immigration and Nationality

Act, 8 U.S.C. § 1256 (1988), provides for the rescission of the

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adjustment of status of an alien who has been granted adjustment of

status under section 245 of the Act, 8 U.S.C. § 1255 (1988). It is well

established that the Service may use exclusion or deportation proceed-

ings against a lawful permanent resident whether the alien gained

resident status through entry on an immigrant visa or through

adjustment of status. There is no prerequisite of revocation of the

status of an alien whose status was adjusted to that of lawful

permanent resident. Monet v. INS, 791 F.2d 752 (9th Cir. 1986);

Ubiera v. Bell, 463 F. Supp. 181 (S.D.N.Y.), affd without opinion, 594

F.2d 853 (2d Cir. 1978); Matter of Belenzo, 17 I&N Dec. 374 (A.G.

1981); Matter of S-, 9 I&N Dec. 548 (A.G. 1962).

As a matter of logic and policy, it makes no sense to provide more

protection from deportation to a temporary resident than to a lawful

permanent resident. The plain language of the regulation does not

require that result, nor does any language of the statute. Therefore, the

Board should take this opportunity to correct the erroneous decision of

the immigration judge in this case. It should not be necessary for the

Service to revise the regulation in order to have a reasonable

interpretation of it.

I would grant the motion to reconsider the Board's decision of

September 10, 1990, and, upon reconsideration, reverse the order of

the immigration judge.

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