HINOJOSA

Interim Decision #2718

MATTER OF HINOJOSA

In Exclusion Proceedings

A-17299766

Decided by Board July 10, 1979

(1) Applicant who was admitted to the United States in February 1966, as a lawful

permanent resident and who traveled to Mexico in April 1972, for 1 week, returning

with 60 pounds of marijuana for which he was convicted, after parole for prosecution,

of the offense of importing marijuana in violation of 21 U.S.C. 952(a) and 960(a)(1),

was correctly found excludable under section 212(a)(23) of the Immigration and

Nationality Act, 8 U.S.C. 1182(0(23), when he sought readmission to the United States

as a lawful permanent resident in March 1973. Rosenberg v. F1euti, 374 U.S. 449 (1963),

distinguished; Laredo-Miranda v. INS, 555 F.2d 1242 (5 Cir. 1977); Matter of Alvarez-

Verduzco, 11 I&N Dec. 625 (BIA 1966), follovied.

(2) A lawful permanent resident who, following a narcotics conviction which renders

him excludable, seeks readmission within the 7-year period of lawful permanent

residence required for section 212(c) relief, 8 U.S.C. 1182(c), but whose continuing

application for reentry as a lawful permanent resident is not adjudicated until after

the 7 years, is eligible to apply for that relief.

(3) In the absence of an event fixing its termination, such as an adjudication of de-

portability or an intervening unlawful entry, the lawful resident status of an alien

who has slipped into an excludable class subsequent to acquisition of that status is

deemed to continue to exist at the time of the application for section 212(c) relief.

Matter of S—, 6 I&N Dec. 392 (BIA 1954; A.G. 1955), followed; Matter of M—, 7 I&N

Dec. 140 (BIA 1956), distinguished.

(4) Lawful domicile short of the 7 years necessary for a waiver of inadmissibility under

section 212(c) of the Act may be perfected as to length during an alien's temporary

absence from the United States. Matter of C—,1 I&N Dec. 631 (BIA 1943; A.G. 1944),

followed.

EXCLUDABLE: Act of 1952—Sec. 212(a)(23) [8 U.S.C. 1182 (a)(23)]—Convicted of

marihuana law violation

ON BEHALF OF APPLICANT: Laurier B. McDonald, Esquire

Pena, McDonald, Prestia & Zipp

600 South Closner Avenue

P.O. Box 54

•Edinburg, Texas 78539

By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

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Interim Decision #2718

In a decision dated August 10, 1977, the immigration judge found the

applicant inadmissible under section 212(a)(23) of the Immigration

and Nationality Act, 8 U.S.C. 1182(a)(23), denied his application for

relief under section 212(e) of the. Act, and ordered him excluded and

deported from the United States. The applicant has appealed. The

record will be remanded to the immigration judge for further

consideration.

The applicant, a native and citizen of Mexico, was admitted to the

United States for lawful permanent residence in February 1966. In

March 1972, the applicant traveled to Mexico for 3 week and sought

readmission as a returning resident on April 3, 1972. In the course of

inspection, approximately 60 pounds of marijuana were discovered in

the applicant's automobile. He was paroled into the United States

under section 212(d)(5) of the Act pending prosecution. On June 12,

1972, he was convicted in the United States District Court at Browns-

ville, Texas, of the offense of importing marijuana in violation of 21

U.S.C. 952(a) and 960(a)(1), and sentenced to serve 6 months of a 3-year

sentence, the balance of the term suspended. After release on

November 12, 1972, the applicant was placed on probation, his im-

migration parole status was revoked, and he was allowed by Immigra-

tion and Naturalization Service officials to voluntarily return to Mex-

ico, ostensibly for the purpose of pursuing his application for

admission.' The applicant did not, in fact, seek admission until March

1973, some 4 months after his arrival in Mexico. At this date, more

than 7 years had elapsed since the applicant had been admitted to the

United States for lawful permanent residence.

In a decision dated August 10, 1977, the immigration judge found the

applicant excludable under section 212(a)(23) on the basis of the

marijuana conviction? He further held that the applicant was

statutorily ineligible for a section 212(c) waiver for lack of 7 consecu-

tive years of lawful unrelinquished domicile and that, even if eligibility

could be established, relief should nonetheless be denied in the exercise

of discretion. While we agree that the applicant is excludable as

charged, we must reverse the immigration judge's holding with

respect to the section 212(c) waiver.

Section 212(c) of the Immigration and Nationality Act provides, in

pertinent part, that aliens lawfully admitted for permanent residence

' The record does not show that, at that time, he was notified of his options, i.e., to

abandon his right of residence or to defend it in an exclusion hearing. Cf. 8 C.F.R.

212.5(3),

'In so holding, the immigration judge correctly concluded that the entry doctrine

enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), was not applicable to Mr.

Hinojcsa's case. See Laredo Miranda v. INS, 555 F2d 1242 (5 Cir. 1977); Matter of Rico,

-

16 1&N Dec 151 (BIA 1977); Matter of Alvarez-Verduzco, 11 I&N Dec. 625 (BIA 1966).

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Interim Decision #2718

who temporarily proceed abroad voluntarily, 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 discretion of

the Attorney General without regard to certain specified grounds of

exclusion enumerated in section 212(a) of the Act. Section 212(a)(23),

under which the applicant is charged, is one of the specified grounds of

inadmissibility which may be waived under section 212(c).

In finding the applicant statutorily ineligible for relief, the immigra-

tion judge relied on Matter of M—, 7 I&N Dec. 140 (BIA 1956). That

decision involved an alien who had been admitted to the United States

as a lawful permanent resident on December 22, 1945. In 1950, she was

institutionalized in New York with involutional psychosis, melancho-

lia. After her release from the hospital, she traveled to Europe for

approximately 4 months and was readmitted to the United States on

March 3, 1952, upon presentation of a reentry permit. In connection

with a subsequent departure, the alien attempted to obtain a waiver of

the ground of inadmissibility relating to the prior attack of insanity.

The Board found the applicant ineligible for the 'waiver, noting that

when she reentered the United States upon presentation of her reentry

permit on March 3, 1952, she was in fact in the state of being inadmissi-

ble. Despite the fact that she had gained admission to the United

States as a returning resident on March 8, the Board held that from

the date of that entry, she no longer had a lawful domicile to which to

return and could not thereafter acquire the 7 years of lawful domicile

required for relief under section 212(c). Thus, the consequence of the

holding in Matter ofM— is that a lawful permanent resident is forever

barred from establishing eligibility for a section 212(e) waiver if he

leaves and reenters within the first 7 years of his lawful permanent

residence subsequent to an act or event which renders him excludable.

This result follows regardless of the fact that the alien is duly in-

spected and admitted by immigration officials upon his reentry and

any subsequent exclusion or deportation proceeding which may be

brought is not instituted before the requisite 7-year period has

elapsed.

Applying the rationale 'of Matter of M— to the present case, the

immigration judge made the following observation:

When applicant was seeking admission to the United States on April 3, 1972, he was

excludable under the provisions of section 212(a)(23) of the Act, for which offense he

was convicted on June 12,1972; therefore, applicant could not be returning to a lawful

unrelinquished domicile after April 3, 1972—applicant no longer had a lawful admis-

sion for permanent residence upon which to base a waiver under the provisions of

section 212(c) of the Act. (Immigration judge's decision at 6.)

We conclude that Matter of M— is distinguishable from the present

case. In both cases, the event which put the alien in an excludable class

occurred before the alien had accumulated 7 consecutive years of

lawful domicile. Also, in both eases, the alien was outside the United

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Interim Decision #2718

States temporarily after completing less than '1 years lawful domicile.

Another similarity is that in both cases, the first formal adjudication

of excludability occurred after the passage of 7 years from the com-

mencement of lawful United States domicile.

The essential distinction lies in this: In Matter of M—, a completed

entry occurred after the act or event rendering the alien excludable

and before the alien had completed the 7 years necessary for the

waiver. The date of the reentry could be neither ignored nor amended,

nor was any other type of waiver of excludability available as of that

date. In the present case, no entry occurred.

The law is settled that after an illegal entry, an alien does not

continue to be a lawful resident. Matter of Kolk, 11 I&N Dec. 103 (BIA.

1965). Every entry is critical Volpe v. Smith, 289 U.S. 422 (1933). Matter

of M— is to be understood on that basis, that because the reentry

occurred at a time when no waiver of excludability was available, the

alien could no longer accumulate lawful permanent residence to tack

on to that which she had accumulated before the reentry on March 3,

1952, after becoming excludable. On the facts before us, applicant

Hinojosa made no entry within the 7 year period and after deportabili-

-

ty arose, nor has there been any other termination of lawful status,

such as an adjudication of deportability, within the 7-year period. His

application for admission has been a continuing one up to the present

date. In the absence of a significant event fixing the date of its termina-

tion, the lawful resident status of an alien who has slipped into an

excludable class subsequent to acquisition of resident status is deemed,

for the purpose of the availability of section 212(c) relief, to continue to

exist at the time of the application for relief. Matter of —, 6 I&N Dee.

392 (BIA 1954; A.G. 1955). See also Matter of Salmon, 16 I&N Dec. 734

(BIA 1978). Moreover, this Board has ruled that domicile short of 7

years may be perfected as to length during an alien's temporary

absence from the United States. Matter of C— 1 I&N Dec. 631 (131A

1943; A.G. 1944). In Matter of M , we noted the existence and con-

—

tinued vitality of both Matter of S— and Matter of C—. These are the

controlling precedents in the present case. Accordingly, we find that

the applicant did not lose his lawful domicile on April 3, 1972, that he

has maintained a lawful unrelinquished domicile for a 7-year period as

required by the statute, and that he is therefore statutorily eligible for

the relief he seeks.

However, we find that remand of the record is necessary in order to

enable the immigration judge to exercise his administrative discretion

on the basis of current facts. See generally Matter of Merin, 16 I&N

Dec. 581 (BLA 1978). After receipt of any documentary or testimonial

evidence which either party may wish to offer, the immigration judge

should enter a new decision as expeditiously as he is able and, if again

adverse to the applicant, should certify the decision to the Board for

review.

ORDER, The record is remanded to the immigration judge for

the action indicated in the foregoing opinion.

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