GUNAYDIN AND KIRCALI

Interim Decision #2925

MATTER OF GUNAYDIN and KIRCALI

In Deportation Proceedings

A-23055205

A-23431315

Decided by Board October 27, 1982

(1) The status of a lawful permanent resident who has entered the United States without

inspection terminates only when the adjudication of his deportability becomes final in

administrative proceedings. Matter of M , 5 l&N Dec. 642 (BIA 1954), modified.

-

(2) A conviction for a deportable offense does not terminate the status of a lawful perma-

nent resident_

(3) A lawful permanent resident alien who entered the United States without inspection

is not deportable upon subsequent reentry with a Form 1-151 under section 241(a)(1) of

the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as being excludable under

section 212(a)(20) of the Act. 8 U.S.C_ riP2(a)(20), far lark of 9 valid visa

CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)I—Exeludable at entry under

sec. 212(a)(20), I&N Act (8 U.S.C. 1182(a)(20))—No valid -visa

(Both respondents)

ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:

Brian S. Lafferty, Esquire Joanna London

56- 08 Deny Street Acting Appellate

Newark, New Jersey 07105 Trial Attorney

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

In a decision dated January 27, 1982, the immigration judge found the

respondents deportable under section 241(a)(1) of the Immigration and

Nationality Act, 8 U.S.C. 1251(a)(1), as aliens who were excludable at

entry under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), for lack

of a valid immigrant visa. The respondents have appealed from that

decision. The record will be remanded to the immigration judge.

The respondents are both natives and citizens of Turkey who have

been accorded status as lawful permanent residents of the United States.

The record reflects that they left the United States to go to Canada on

September 5, 19F!. and, according to their own admissions, they reen-

tered this country on Sispteinber 7, 1981. without submitting to :nspec-

226

Interim Decision #2925

tion. On September 8, 1981, both respondents were convicted of enter-

ing the United Stateg without inspection in violation of 8 U.S.C. 1325,

Orders to Show Cause were issued against the respondents on Sep-

tember 7, 1981, ehargingthem with deportability under section 241(a)(2)

of the Ad, 8 U.S.C. 1251(a)(2), for entering without inspection. On

October 29, 1981-, the respondents departed from the United States on

the advice of counsel for the admitted purpose of seeking readmission as

lawful permanent residents. The respondents returned to the United

States on October 30, 1981, and reentered the country upon presenta-

tion of their Alien Registration Receipt Cards (Form 1-151). The Ser-

vice issued new Orders to Show Cause on November 4, 1981, charging

the respondents with deportability under section 241(a)(1) of the Act for

excludability at entry under section 212(a)(20).

At deportatiOn proceedings, the respondents admitted each of the

allegations of the Orders to Show Cause but denied deportability. They

contended that as a matter of law they were not deportable for entering

without a valid immigrant visa because they were properly admitted as

lawful permanent residents at the time of their October 30, 1981, entry

which, they further. asserted, terminated their deportability for entry

without inspection. The Service relied on Matter of 5 I&N Dec. 642

(BIA 1954), to support its position that by making an entry without

inspection the respondents automatically terminated their lawful perma-

nent resident status so as tb render their visas invalid.

In concluding that the respondents were not in possession of valid

immigrant visas when they made their second entry the immigration

judge declined to rely on Matter of M- alone, but determined that the

respondents' convictions constituted a sufficient adjudication of their

status to terminate their permanent residence.

In Matter of M-, supra, the Board stated in dicta that, in view of the

alien's entry without inspection, "it can no longer be said that his [lawful

' permanent resident] status has not changed. . . ." Subsequent to that

decision, we determined that an act which provides the basis for -a lawful

permanent resident alien's deportability does not itself terminate his

status. See Matter of Salmon., 16 I&N Dec. 734 (BIA 1978); Matter of

M-P-, 9 I&N Dee. 747 (BIA 1962); Matter of S-, 6 I&N Dec. 392 (BIA

1954, A.G. 1955); see also Matter of Mosqueda, 14 1&N Dec. 55 (R.C.

1972). Furthermore, in Matter of Lok, 18 I&N Dec. 101 (BIA 1981),

we held that an alien's lawful permanent resident status ends as a result

of his commission of a deportable offense only upon the entry of a final

order of deportation) In light of these decisions, we believe that the

I We noted in our decision that lawful permanent resident status may also change as a

result of rescission, relinquishment, departure under an order of exclusion or deportation,

and adjustment to nonimmigrant status. See Matter of Lok, supra, at n. 8.

327

Interim Decision #2925

language of Matter of M-, supra, relating to a change of lawful perma-

nent resident status was improvident. Therefore, we shall withdraw

from the dicta in that case to the extent that it indicates that an entry

without inspection automatically results in the termination of lawful

permanent resident status. We now hold that the status of a lawful

permanent resident who has entered the United States without inspec-

tion terminates only when the adjudication of his deportability becomes

final in administrative proceedings. We find no reason to reach a con-

trary conclusion where a conviction for a deportable offense has occurred.

We conclude that the respondents were not deportable under section

241(a)(1) as aliens excludable under section 212(a)(20) at the time of

their entry. Therefore, the charge upon which the immigration judge

found the respondents deportable has not been sustained. However, the

respondents were also charged with deportability for their entry with-

out inspection in the Orders to Show Cause of September 7, 1981, which

remain in effect. See Matter of Brown, 18 I&N Dec. 324 (BIA 1982).

We shall accordingly remand the record to the immigration judge for

further proceedings to determine the respondents' deportability under

section 241(a)(2) of the Act. See Matter of Ruts, 18 I&N Dec. 320 (BIA

1982).

ORDER: The record is remanded to the immigration judge for

further proceedings consistent with the foregoing opinion.

. 328