PRZYGOCKI

Interim Decision #2789

MATTER OF PRZYGOCKI

In Deportation Proceedings

A-8241801

Decided by Board March 21, 1980

(1) In view of the absence of statutory and regulatory sanctions for "conditional"

waivers of inadmissibility under section 212(c) of the Act, 8 U.S.C. 1182(c), no author-

ity is found for granting such relief subject to conditions subsequent.

(2) Section 212(c) relief should be unconditionally granted as to specified grounds of

inadmissibility where an alien establishes that relief is warranted.

(3) Immigration judge's grant of section 212(c) vacated and the record remanded for

further proceedings where the respondent had been granted section 212(e) relief

conditioned upon not violating "the criminal laws of any state or the United States for

a period of five years ...."

ON BEHALF OF RESPONDENT: Darwin A. Hindman, Jr., Esquire

300 Guitar Building

Columbia, Missouri 65201

Bx Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members

The Service appeals from the February 15, 1978, decision of the

immigration judge conditionally granting the respondent's application

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

8 U.S.C. 1182(c). The record will be remanded for further proceedings

and the entry of a new order.

The respondent is a 29-year-old native of Germany and citizen of

Poland who last entered the United States as a lawful permanent

resident in 1952. In May 1975, he was convicted in a Missouri state

court for unlawfully selling a quantity of marijuana and was sentenced

to confinement for a period of five years. He was thereafter charged

with being deportable under section 241(a)(11) of the Act, 8 U.S.C.

1251(a)(11).

Deportation proceedings were held in November 1976 and April 1977

while the respondent was still in confinement. The respondent denied

deportability, but was, properly found deportable as charged. The

remainder of the proceedings below concerned the respondent's appli-

cation for relief under section 212(c) of the Act. See Matter of Silva, 16

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I&N Dec. 26 (BIA 1976).

The record indicates that the respondent entered this country while

under two years of age and that he has lived here ever since. Evidence

submitted in support of the application for relief indicates that: The

respondent's father is deceased. The respondent cared for his mother,

who has suffered from mental illness, until she was committed to a

mental institution in 1974. He assists in supporting his mother when

he is able and provides her "affection and moral support." He has a

United States citizen sister and two citizen children.' He has no rela-

tives, friends or acquaintances outside of the United States and is "not

really" familiar with any language other than English. He has suffered

from drug dependency in the past, which he indicates is the cause of his

criminal record (including a 1969 burglary conviction). While in con-

finement the respondent earned a high school equivalency degree and

college credits by taking part in a part-time college program. His

confinement record has been "quite good" according to a 1976 report

prepared by his caseworker at the state institution. The caseworker

believed that the respondent would be a "productive, responsible per-

son upon his release from incarceration."

After considering the equities and adverse matters in the respond-

ent's ease, the immigration judge determined that favorable discre-

tionary relief was warranted. He found that the record indicated that a

"reformation [had] taken place." The immigration judge then sought

to conditionally grant the application for section 212(c) relief subject

to the respondent not violating "the criminal laws of any state or of the

United States for a period of five years .. . ." By further order, the

immigration judge provided that if the respondent was convicted of an

offense within five years, the application for relief was automatically

revoked and the respondent would be deported.

The Service appeals from the immigration judge's exercise of discre-

tion, submitting that favorable action was inappropriate in view of the

respondent's "extensive and serious criminal record which extends

from the age of 17 until his present confinement and the lack of any

real showing that he has truly reformed."

We will first address the issue of the immigration judge's authority

under law and regulation to grant section 212(c) relief subject to

specified conditions subsequent. The predecessor provision to section

212(c) of the 1952 Act was the seventh proviso to section 3 of the 1917

Immigration Act. That proviso read:

That aliens returning after a temporary absence to an unrelinquished United States

domicile of seven consecutive years may be admitted in the discretion of the Attorney

General, and under such conditions as he may prescribe.

' The respondent is divorced from his wife and their children are in her custody.

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In view of the express statutory language authorizing the Attorney

General to prescribe conditions to grants of relief, the Board held that

restrictions could validly be placed on a grant of seventh proviso relief.

See Matter of V—I—, 3 I&N Dec. 571, 573 (BIA 1949); Matter of L—, 2

I&N Dec. 486 (BIA 1946; A.G. 1946). Such conditions ordinarily

pertained to the applicant remaining a person of good moral character

and not subsequently committing "any offenses." The orders specified

that revocation could only occur "after hearing." See, for example,

Matter of 4 I&N Dee. 180 (C.O. 1950; BIA 1951; A.G. 1951); Matter

of G—Y—G—, 4 I&N Dec. 211 (BIA 1950; A.G. 1951).

The seventh proviso was superseded by section 212(c) of the 1952

Act. This section provides:

Aliens lawfully admitted for permanent residence who temporarily proceeded

abroad voluntarily and not under an order of deportation, and who are returning to a

lawful unrelinquished domicile of seven consecutive years, may be admitted in the

discretion of the Attorney General without regard to the provisions of paragraph (1)

through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this

subsection shall limit the authority of the Attorney General to exercise the discretion

vested in him under section 211(b).

The language in section 212(c), thus, contains no express provision for

conditional grants of relief as had been the case with the seventh

proviso. Nonetheless, in cases involving waivers of crimes, the Board

continued using the same "conditional" orders when relief was granted

under section 212(c) as had been used when relief was granted under

the seventh proviso. See Matter of G—A—, 7 I&N Dec. 274 (BIA 1956);

Matter of S—, 6 I&N Dec. 392 (BIA 1954; A.G. 1955); Matter of F—, 6

I&N Dec. 537 (BIA 1955); Matter of M—, 5 I&N Dec. 598 (BIA 1954).

Compare Matter of A—, 7 I&N Dec. 327 (B.C. 1956) (involving inadmis-

sibility based on a prior attack of insanity). The last published Board

decision involving a conditional grant of relief was in 1963. See Matter

of Edwards, 10 I&N Dec. 506 (BIA 1963, 1964).

The question of whether conditional grants of relief were authorized

under the provisions of section 212(c) was never specifically addressed

by the Board. Apparently, no recipient of such a grant felt any need to

challenge its conditional nature and the Board is unaware of ever

reviewing an attempted section 212(e) "revocation" action? The prac-

tice of using conditional grants, of section 212(c) relief may have simply

resulted from a continued utilization of seventh proviso "format"

orders without any consideration of the fact that the specific language

authorizing "conditional" waivers contained in the seventh proviso did

not make its way into section 212(c) of the 1952 Aet.

In any case, in view of the absence of statutory and regulatory

2 No statutory or regulatory mechanism for such "revocation" proceedings exist. Nor

can "rescission" of section 212(c) relief be accomplished under section 246 of the Act.

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sanctions for "conditional" section 212(0 waivers of inadmissibility',

we cannot find authority for the continued use of such grants of relief.

See, generally, Fulgencio v. INS, 573 F.2d 596 (9 Cir. 1978) (involving

"conditional" grants of adjustment of status under section 245 of the

Act). Such relief should instead be unconditionally granted as to

specified grounds of inadmissibility to those cases where an alien

establishes that relief is warranted; thus, returning the alien to the

same lawful permanent resident status previously held' Accordingly,

in this case, the immigration judge's conditional orders of February 15,

1978, will be vacated.

Moreover, as two years have elapsed since the last consideration of

this application for relief, as the respondent was incarerated at the

time of the application and as the nature of the immigration judge's

conditional order suggests reservations concerning his finding of a

"reformation," the proceedings will be remanded for further evidence

regarding the respondent's post-conviction behavior and his

rehabilitation. A new decision regarding his application for section

212(o) relief should then be entered.

ORDER The February 15, 1978, orders of the immigration judge

are vacated.

FURTHER ORDERe The record is remanded to the immigration

judge for further proceedings in accordance with the above decision

and for the entry of a new decision.

' Compare section 212(g) of the Act which had its origins in section 5 of the Immigra-

tion Act of September 11, 1957, and which includes express language authorizing

admission of certain aliens "in accordance with such terms, conditions, and controls, if

any... as the Attorney General ...may by regulations prescribe." See also section 212(h)

of the Act.

' The immigration judge's order here left the respondent in a questionable and

tenuous status. On its face, the orders would result in the respondent being immediately

deportable, without further hearing, if any criminal conviction occurred within five

years, no matter how technical or minor the offense or how mitigating the surrounding

circumstances.

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