SILVA

Interim Decision #2532

MATTER OF SILVA

In Deportation Proceedings

A-8745827

Decided by Board September 10, 1976

(1) Respondent was convicted of possession of marihuana with intent to distribute in

violation of 21 U.S.C. 841(a)(1); admitted to the factual allegations contained in the

order to show cause and conceded deportability under section 241(a)(11) of the Immigra-

tion and Nationality Act.

(2) Under the provisions of section 212(c) of the Act (8 U.S.C. 1182(c)), a waiver of the

ground of inadmissibility may be granted to a permanent resident alien in a deportation

proceeding regardless of whether he departs the United States following the acts which

render him deportable. The constitutional requirements of due process and equal

protection of the laws mandate that no distinction shall be made between permanent

resident aliens who proeed abroad and nnndeparting permanent resident aliens who

apply for the benefits of section 212(e) of the Act. SeeFrancis v. INS 532 F .2d 268 (2 Cir.

1976).

(3) Permanent resident aliens similarly situated shall be treated equally with respect to

Limit applications for discretionary relief under ocetion 212(e) of the Aet.

CHARGE:

Order: Act of 1952--Section 241(a)(11) [8 U. S. C. 1251(aX11)1—Convicted for violation of

a law relating to marihuana

ON BEHALF OF RESPONDENT: Laurier B. McDonald, Esquire

Pena, McDonald, Prestia and Zipp

P. 0. Box 54

Edinburg, Texas 78539

On July 8, 1974, the respondent NAMS convicted in the United States

District Court for the Southern District of Texas, Brownsville Division,

of possession of marihuana with the intent to distribute, in violation of 21

U.S.C. 841(a)(1). He was sentenced to imprisonment for a period of five

years, a special parole term of two years, and a $500 fine. He was

ordered to serve six months of the imprisonment and the remainder of

the sentence was suspended. Respondent was also placed on probation

for five years.

At this hearing, respondent admitted to the factual allegations con-

tained in the Order to Show Cause and conceded deportability under

section 241(a)(11) of the Act. The immigration judge found the respon-

dent deportable and ordered his deportation to Mexico.

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Interim Decision #2532

On appeal, counsel contends that the respondent is eligible for ad-

vance waiver of inadmissibility under the provisions of section 212(e) of

the Act. The record contains respondent's Application for Advance

Permission to Return to Unrelinquished Domicile (Form I-191) filed

March 13, 1975.

We find that respondent is a native and citizen of Mexico who has been

a lawful permanent resident since September 17, 1954. His deportabil-

ity resulted from a conviction of a marihuana violation. The record shows

no evidence that he departed the United States following his marihuana

conviction.

Section 212(c) of the Act provides that aliens lawfully admitted for

permanent residence, who temporarily proceed 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 certain

specified grounds for exclusion enumerated in section 212(a) of the Act.

The grounds specified include an alien convicted of a marihuana violation

as set forth in section 212(a)(23) of the Act.

The issues presented by the case are whether the respondent is

statutorily eligible for discretionary relief under section 212(c) of the

Act in a deportation proceeding, and whether respondent's case merits a

favorable exercise of discretion.

In a decision dated May 29, 1975, the immigration judge found the

respondent deportable as charged, denied his application for advance

permission to return to an unrelinquished domicile, and ordered him

deported. The respondent has appealed from that decision. The appeal

will be sustained.

The respondent is a 34-year-old married male alien, a native and

citizen of Mexico. He was admitted to the United States as a permanent

resident alien on September 17, 1954.

Under section 241(a)(11) of the Immigration and Nationality Act, an

alien in the United States is deportable if, at any time after entry, he

has been convicted of a violation of, or a conspiracy to violate, any law or

regulation relating to the illicit possession of or traffic in narcotic drugs

or marijuana.

We have consistently held that a waiver of the ground of inadmissibil-

ity under section 212(c) of the Act may be granted nuns pro tunc in

deportation proceedings, Matter of Tanori, Interim Decision 2467 (BIA

1976); Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter

of C---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 L & N. Dec. 537 (BIA 1955);

Mutter of M — , 5 I. & N. Dec. 598 (BIA 1954); Matter of T, 1 I. gz. N_

Dec. 1 (BIA, A.G. 1940). (Decided under predecessor statute.) In these

eases we have interpreted section 212(c) of the Act to mean that a

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Interim Decision #2532

waiver of the ground of inadmissibility may be granted in a deportation

proceeding when, at the time of the alien's last entry, he was inadmissi-

ble because of the same facts which form the basis of his deportability,

Matter of G—A—, supra; Matter of 8—, supra.

it has been our view that a permanent resident alien is not statutorily

eligible for relief from deportation pursuant to section 212(c) of the Act

unless (1) his deportability resulted from a conviction which occurred

prior to his departure from the United States; (2) his departure from the

United States was voluntary and temporary and not under an order of

deportation; and (3) that at the time of his last entry he was returning to

an unrelinquished domicile of seven years.

In Matter of Smith, 11 I. & N. Dec. 325 (BIA 1965), we held that an

alien's application for a section 212(c) waiver can be considered (by an

immigration judge) in conjunction with an application for adjustment of

status under section 245 of the Act in deportation proceedings. In

Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971), affirmed 466

F.2d 1198 (9 Cir. 1972), we held that section 212(c) relief was not

available to a native of the Western Hemisphere because he was ineligi-

ble for adjustment, of status under section 245 of the Act. Under the

facts of that case, the respondent, a native and citizen of Mexico who

was lawfully admitted as a permanent resident alien in 1954, was found

deportable on the basis of a 1939 narcotics conviction. The evidence

revealed that he had not departed the United States since his convic-

tion. In deciding that the respondent did not qualify for a waiver of the

ground of inadmissibility under section 212(c) of the Act, we pointed out

that:

The requirement that an alien must have temporarily proceeded abroad voluntarily and

not under an order of deportation makes it clear that Congress curtailed our authority

fur the advance exercise of section 212(c) relief in a deportation proceeding. Where a

section 212(c) application is not coupled with an application for adjustment of status

under section 245 of the Act, we have no basis for avoiding the statutory requirement

that an alien lawfully admitted for permanent residence must be returning to resume a

lawful domicile of seven consecutive years following a temporary, voluntary departure

not under an order of deportation.

In Matter of Francis, unreported, file A - 12081215 (BIA August 15,

1974), the facts related to a 54 year old male respondent, a native and

- -

citizen of Jamaica, who was admitted to the United States as a perma-

nent resident alien on September 8, 1961. Following a deportation

hearing, the immigration judge found the respondent deportable as

charged by virtue of a conviction on October 20, 1971, for criminal

possession of dangerous drugs in the sixth degree (marihuana). The

immigration judge also found that the respondent had not been absent

from the United States since his original entry. In that case we agreed

with the immigration judge that the respondent was deportable within

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interim ireeision #Zb32

the meaning of section 241(a)(11) of the Act and that deportability had

been established by clear, convincing and unequivocal evidence. We

further agreed with the immigration judge that deportation proceed-

ings, rather than exclusion proceedings, were properly instituted, and

that the respondent was not eligible to apply for relief under section

212(c) of the Immigration and Nationality Act.

On appeal to the United States Court of Appeals for the Second

Circuit in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), the court held that

our interpretation of section 212(c) of the Act as applied to the respon-

dent was unconstitutional; and that the respondent, a permanent resi-

dent alien who had not departed the United States following his

marihuana conviction, was entitled to apply to, the Attorney General for

discretionary relief under section 212(e) of the Act.' The court was of

the opinion that the provisions of section 212(c) are applicable not only

to permanent resident aliens who temporarily proceed abroad voluntar-

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

lawful unrelinquished domicile of seven consecutive years, but that such

provisions are also applicable to nondeparting permanent resident

aliens.

In so holding, the court in the Francis caae pointed out that the

enforcement of immigration laws and policies relating to such laws must

respect the procedural safeguards of due process under the Fifth

Amendment of the Constitution of the United States. The court_also

expressed the well-established view that the equal protection of the

laws clause of the Fourteenth Amendment of the Constitution of the

United States applies to aliens as well as citizens. In its application of

the minimum scrutiny test 2 to this case, the court was of the opinion

that:

Fundamental fairness dictates that permanent resident aliens who are in like cir-

cumstances, but for irrelevant and fortuitous factors, be treated in a like manner. We do

not dispute the power of Congress to create different standards of admission and

deportation for different groups of aliens. However, once those choices are made,

individuals within a particular group may not be subjected to disparate treatment on

criteria -wholly unrelated to any legitimate governmental interest ... .

We note that the Service has informed us in a memorandum dated

August 25, 1976 that, on July 22, 1976, the Solicitor General decided

The court granted respondent's petition and remanded the 'Case to us "so that the

Attorney General's discretion under section 212(c) may be exercised."

Under the minimal scrutiny test, distinctions between different classes of persons

must be reasonable, not arbitrary, and must rest upon some ground of difference having a

fair and substantial relation to the object of the legislation, so that all persons similarly

circumstanced shall be treated alike. Stanton v. Stanton, 421 U.S. 7, 14, 95 S. Ct. 1373,

1377, 43 L.Ed. 2d (388.694 (1975): Rouster Guano Co. v. Virginia. 253 U.S. 412. 415, 40 S.

Ct. 560, 561, 64 L.Ed. 989, 990 (1920).

29

JJeelblUll 11-4...1J4

against seeking certiorari in Francis v. INS. In view of the ruling of

the Court of Appeals for the Second Circuit in Francis v. INS, we with-

draw from the contrary position expressed by this Board in Matter of

Francis, supra, and Matter of Arias-Uribe, supra. We conclude that,

under the provisions of section 212(c) of the Act, a waiver of the ground

of inadmissibility may be granted to a permanent resident alien in a

deportation proceeding regardless of whether he departs the United

States following the act or acts which render him deportable. In light of

the constitutional requirements of due process and equal protection of

the law, it is our position that no distinction shall be made between

permanent resident aliens who temporarily proceed abroad and non-

departing permanent resident aliens. We further conclude that perma-

nent resident aliens similarly situated shall be treated equally with

respect to their applications for discretionary relief under section 212(c)

of the Act. Accordingly, we shall sustain the appeal and remand this

case to the immigration judge for further proceedings consistent with

the above opinion.

ORDER: The appeal is sustained and the record is remanded to the

immigration judge for further proceedings consistent with the foregoing

opinion.

Irving A. Appleman, Member, Concurring (October 5, 1976):

For the reasons set forth below L concur in the majority decision.'

However, that opinion, following closely as it does the decision in

Francis v. INS, 532 F.2d 268 (2 Ch.. 1976), in my view needs clarifica-

tion and amplification.

By its express language, section 212(c) is concerned with aliens "who

are returning to a lawful unrelinquished domicile." Such aliens "may be

admitted" in the discretion of the Attorney General if they meet certain

criteria. Like the predecessor seventh proviso to Section 3 of the Immi-

gration Act of 1917, 39 Stat. 874, section 212(c) was inserted in the

Immigration and Nationality Act to take care of the lawful permanent

resident who left the United States temporarily and who, but for this

waiver provision, could not have been readznitted. 2

In Matter of G--A—, 7 I. & N. Dec. 274 (BLA. 1956), a deportation

proceeding, the Board examined the facts existing as of the time the

alien returned to the country, and found that if he had applied for

section 212(c) relief at that time, a waiver would have been granted him.

The majority decision was inadvertently released while this separate opinion was

being prepared and hence bears a different date.

2 Other provisions now exist permitting waivers of some of the grounds of inadmissibil-

ity in section 212; see, for example, section 212(g), (h), and (i), added by the Act of

September 26, 1961, 75 Stat. 654, 655. These waivers did not exist at the time the

Immigration and Nationality Act was enacted in 1952.

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Interim Decision #2532

Relying upon the words "may be admitted" in section 212(c) and the

sanction given by the Attorney General to the grant of the relief in

Matter of L—, 1 I. & N. Dec. 1 (BIA 1940; A.G. 1940), the Board

granted the relief nunc pro tune. The waiver having been granted, the

alien was immunized from deportation for the same crime. Id., at 275.

Similarly, in Matter of Smith, 11 I. & N. Dec. 325, another deporta-

tion proceeding, the alien's application for adjustment of status under

section 245 was accompanied by a request for a waiver under section

212(c), of a ground of inadmissibility which would have made the alien

ineligible for a visa and hence not qualified for section 245 adjustment. A

section 245 adjustment of status is the Immigration and Nationality Act

equivalent of, and successor to, preexamination. Under the preexami-

nation procedure the alien departed from the United States, and, by

prearrangement, went to a friendly consulate, obtained his visa and

returned to the United States, often the same day. Section 245 requires

the alien to show both visa eligibility and availability, but, physical

departure from the country has been eliminated. No visa actually is-

sues, but a visa number is allocated and utilized, 8 C.F.R. 245.5. In

Matter of Smith, supra, the waiver under section 212(e) removed a bar

to this fictional issuance of a visa and thus allowed the alien the benefits

of section 245. In coupling section 212(c) relief with a 245 adjustment in

Matter of Smith, the Board, in effect, was doing contemporaneously as

part of the admission process, what it had done retroactively in Matter

of G—A—, supra, In both Matter of G—A—, supra, and Matter of

Smith, supra, notwithstanding that the application was made during a

deportation proceeding, relief under section 212(c) derived at least

colorable authority from the words "may be admitted" in the statute.

However, in Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971),

sustained Arias-Uribe v. INS, 466 F.2d 1198 (9 Cir. 1972), the Board

refused to grant a section 212(c) waiver as outright relief in a deporta-

tion proceeding where it could not be allied, by any chain of reasoning,

to the admission process. The Board had attempted to alleviate the lack

of equal treatment evident in the statute. It could go no further without

flouting the statute. 3 No further "interpretation" was possible.

In Francis v. INS, supra, and in the instant case, we come full circle.

Section 212(c) has now bccn judicially rewritten and is a full deportation

relief, along with suspension of deportation (section 244), adjustment of

status (section 245), and registry (section 249). The lawful permanent

resident, with seven years of domicile, now has a separate and addi-

tional form of relief available to him in deportation proceedings. The

provision respecting admission after temporary departure abroad no

a The Board is a surrogate of the Attorney General, the executive official charged with

the administration of the Immigration and Nationality Act. It has no power to declare

legislation unconstitutional.

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Interim Decision #2532

longer seems relevant. This may be desirable, but it is not what Con-

gress wrote, nor what it intended.

Unquestionably, as the court pointed out in Francis v. INS, supra, in

section 212(c) the Congress created, perhaps inadvertently, an avenue

of relief under the statute for the permanent resident alien who took a

temporary trip abroad after a ground of deportability arose, whereas

the same alien could not get that relief if he remained here. Two classes

of aliens thus existed, identical in every respect, except for the fact that

members of one class got relief, and the others did not—a distinction, in

the words of the court, not rationally related to any legitimate purpose

of the statute.

At the same time, one cannot help but be puzzled by that portion of

the Francis decision which lays this deficiency in the statute at the feet

of the Board of Immigration Appeals. The fact is that if there had been

no Board interpretations whatsoever, the lack of "equal treatment,"

noted in Francis, would still have existed. The long-term resident who

left the United States, and who received section 212(e) relief when

applying for readmission, was thereafter not deportable on the waived

ground. To hold otherwise would seem to render the waiver meaning-

less. Yet the same alien, if unable to leave the United States for a visit

abroad, could be deportable. If this discrimination is irrational and

unconstitutional, it is so, not because of a Board interpretation, but

because of the language of the statute itself. The Francis opinion iiuLeb

the "facial" limitations of section 212(c) and agrees that the reading

given the statute in Arias-Uribe, supra, was consistent with the lan-

guage of section 212(c). While the court did not attempt to find the

statute unconstitutional, there is at least a possibility that this is the

underlying, if unexpressed, basis for the Francis decision. 4

The Solicitor General has decided against seeking certiorari in the

Francis case. The Immigration and Naturalization Service has indi-

cated that it will apply nationwide the rationale of Francis in cases

Challenges to substantive due process under the immigration laws (including those

going to the categories of aliens to whom relief may be granted) have been uniformly

=ejected by the courts. See e.g., Dunn v. INS, 499 F.2d 856 (9 Cir. 1974; Cert. denied 419

"U.S. 1106). The power to control immigration is inherent in national sovereignty and

Thence vested in the legislature not the judiciary. See Hariaiades v. Shaughnessy, 342

-U.S. 580 (1952); Fang Yue Ting v. United States, 149 U.S. 698 (1893). Francis purports to

zest on a violation of procedural due process. Here the courts readily exercise authority

since the challenge is to the manner in which the law is applied rather than to the law

itself. Accordingly, the Francis decision, by invalidating a Board "interpretation" of the

statute, on its face does not offend the precedents. It is, of course, entirely speculative

-whether a possible limitation on the courts authority to invalidate the statute played any

part in the direction taken by the decision.

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Interim Decision #2532

coming before it. Under the circumstances, I concur with the remand in

this case to allow the alien the same opportunity accorded others by the

Service, to apply for the relief.

33