Interim Decision #3213

Interim Decision #3213

MATTER OF GABRYELSKY

In Deportation Proceedings

A-13960837

Decided by Board November 3, 1993

(1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(c) (Supp. IV 1992), may be used in conjunction with an application for

adjustment of status by an alien who is deportable for both drug and weapons

offenses; thus a lawful permanent resident alien who has been convicted of a weapons

violation is not ineligible to apply for adjustment of status and may concurrently

apply for section 212(c) relief to waive his deportability arising from his drug

conviction.

(2)Under the regulations at 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply

for adjustment of status and section 2I2(c) relief.

(3)An applicant for adjustment of status is not precluded from concurrently applying for

a waiver of inadmissibility under section 212(c) of the Act to waive another

deportable offense, even though section 212(c) of the Act would not separately and

independently waive all grounds of deportability.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(i)j—Convicted of

controlled substance violation

Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation

ON BEHALF OF SERVICE:

David M. Dixon

Appellate Counsel

ON BEHALF OF RESPONDENT:

Ramsey Clark, Esquire

Lawrence W. Schilling, Esquire

36 East 12th Street

New York, New York 10003

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

The respondent has appealed from the decision of the immigration

judge dated February 5, 1993, finding the respondent deportable as

charged, denying his requests for adjustment of status under section

245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a)

(1988), and a waiver of inadmissibility under section 212(c) of the Act,

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8 U.S.C. § 1182(c) (Supp. IV 1992), and ordering him deported from

the United States. The appeal will be sustained.

The respondent is a native and citizen of Poland, 1 who was

admitted to the United States at New York, New York, on December

20, 1965, as a refugee when he was 14 years old. His status was

adjusted to that of a lawful permanent resident on March 26, 1968. On

November 14, 1988, he was convicted in the Superior Court of

California, Tebama County, of possession of a firearm, a machine gun,

and possession of a silencer in violation of sections 12220, 12500, and

12520 of the California Penal Code. Also on that date and in that

court, the respondent was convicted of the offense of manufacture of a

controlled substance, methamphetamine, in violation of section

11379.6 of the California Health and Safety Code. Although he was

sentenced to 5 years of imprisonment for the controlled substance

violation and 8 months each for the weapons violations, the respondent served less than 5-years of imprisonment for his convictions. In

addition, the respondent indicated in his application for adjustment of

status that he was also convicted of malicious mischief, and of driving

under the influence on two occasions.

At his hearing before the immigration judge, the respondent

requested the opportunity to apply for adjustment of status under

section 245 of the Act in conjunction with a waiver of inadmissibility

under section 212(c) of the Act. The immigration judge denied his

requests, reasoning that the respondent was not separately eligible for

adjustment of status and section 212(c) relief, and he could not

"bootstrap" eligibility from one form of relief to the other. On appeal,

the respondent argues that the immigration judge erred by denying his

request for adjustment of status in conjunction with the application for

section 212(c) relief. The respondent claims the immigration judge

improperly determined that he was statutorily ineligible for adjustment of status and section 212(c) relief.

Based on the respondent's admissions at his hearing and the records

pertaining to his convictions that were presented by the Service, we

agree that deportability has been established by the clear, unequivocal,

and convincing evidence required by Woodby v MS, 276 U.S. 385

(1966), and 8 C.F.R. § 242.14(a) (1993) to support the order of

deportation.

We reject the respondent's claim that the immigration judge erred

in ordering him deported while his petition for habeas corpus is

pending in the United States District Court for the Eastern District of

California. The fact that the respondent may be attempting to

.

1 The respondent claims his citizenship was revoked by the Polish Government after

his parents escaped from that country in 1963.

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collaterally attack his convictions does not affect his present deportability. See generally Matter of Khalik, 17 I&N Dec. 518 (BIA 1980);

Matter of Fortis, 14 I&N Dec. 576 (BIA 1974); Matter of Sirhan, 13

I&N Dec. 592 (BIA 1970). An alien cannot collaterally attack the

legitimacy of a criminal conviction in a deportation or exclusion

proceeding. See Trench v. INS, 783 F.2d 181 (10th Cir. 1986);

Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981). The pendency of postconviction motions or other forms of collateral attack, not constituting

direct appeals, do not serve to negate the finality of the conviction or

the charge of deportability, unless and until the conviction has been

overturned pursuant to such a motion. Okabe v. INS, 671 F.2d 863

(5th Cir. 1982); Aguilera Enriquez v. INS, 516 F.2d 565 (6th Cir.

1975), cert. denied, 423 U.S. 1050 (1976). We therefore conclude that

the respondent's convictions are final and fully sustain the charges of

deportability.

We find merit however to the respondent's assertion that the

immigration judge erred in finding the respondent ineligible for

adjustment of status and in concluding he could not combine the

remedies of adjustment of status and section 212(c) of the Act. The

respondent should have been allowed to apply for adjustment of status

under section 245(a) of the Act, since he is statutorily eligible for that

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relief.2 Section 245(a) of the Act provides for the adjustment of status,

in the discretion of the Attorney General, of an alien who was

inspected and admitted or paroled into the United States if: (1) the

alien makes an application for adjustment, (2) an immigrant visa is

immediately available to him at the time his application is filed, and

(3) the alien is eligible to receive an immigrant visa and is admissible

for permanent residence.

The record reflects that the respondent was admitted to this country

in 1965, and with respect to the first prerequisite, he has submitted an

Application for Permanent Residence (Form 1-485). Concerning the

second requirement, the respondent's evidence, i.e., his Petition to

Classify Status of Alien for Issuance of Immigrant Visa (Form 1-130)

and Application for Advance Permission to Return to Unrelinquished

Domicile (Form 1 191), indicate that he is the unmarried son of a

United States citizen. He thus falls within the first-preference family

visa category. See section 203(a)(1) of the Act, 8 U.S.C. § 1153(a)(1)

(Supp. IV 1992). A visa petition filed on his behalf has been approved,

and an immigrant visa would be immediately available to him, since

first-preference visa numbers are now current. See Department of

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2

The fact that the respondent has been a lawful permanent resident does not preclude

him from applying for adjustment of status. See Tibke v. INS, 335 F.2d 42 (2d Cir.

1964); Mader of Parodi, 17 I&N Dec. 608, 611 (BIA 1980).

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State Visa Bulletin, Vol. VII, No. 26 (Aug. 1993); see also Matter of

Rainford, 20 I&N Dec. 598. (BIA 1992).

In regard to the third statutory requirement, we point out that while

the respondent's conviction for possession of a firearm establishes his

deportability under section 241(a)(2)(C) of the Act, see Matter of

Chow, 20 I&N Dec. 647 (BIA 1993), affd, 12 F.3d 34 (5th Cir. 1993),

it does not render him inadmissible for purposes of section 245

adjustment, as there is no corresponding exclusion ground. In Matter

of Rainford, supra, the Board specifically held that a conviction for

criminal possession of a weapon did not preclude a finding of

admissibility in connection with an application for adjustment of

status under section 245 of the Act, because it is not a ground of

excludability. Further, although the respondent's controlled substance

conviction does render him inadmissible under section

212(a)(2)(A)(i)(II) of the Act, he may utilize section 212(c) of the Act

for the limited purpose of waiving this ground. See generally Matter of

Hernandez-Casillas, 20 I&N Dec. 262, at 284 n. 6 (BIA 1990; A.G.

1991), aff'd, 983 F.2d 231 (5th Cir. 1993).

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 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.

The respondent is statutorily eligible to apply for this waiver insofar as

he is a lawful permanent resident who apparently has maintained a

lawful unrelinquished domicile in this country for 7 consecutive years.

See section 212(c) of th Act; Matter of Edwards, 20 I&N Dec. 191,

194 95 (BIA 1990).

Although the statute describes a waiver under section 212(c) of the

Act which is available to aliens seeking to eliminate a ground of

inadmissibility upon application to enter the United States, it has been

interpreted to include availability for relief in deportation proceedings

as well where the alien has not departed from the United States

subsequent to the acts that rendered him excludable. See Francis v.

INS, 532 F.2d 268 (2d Cir. 1976); Matter of Granados, 16 I&N Dec.

726 (BIA 1979), affd, 624 F.2d 191 (9th Cir. 1980); Matter of Hom, 16

I&N Dec. 112 (BIA 1977), modified, Matter of Wadud, 19 1&N Dec.

182 (BIA 1984); Matter of Silva, 16 I&N Dec. 26 (BIA 1976); see also

Matter of Hernandez-Casillas, supra.

The immigration judge properly determined that the respondent

could not use section 212(c) of the Act to waive deportability for his

firearms conviction. An alien deportable on the basis of a firearms

conviction is ineligible for relief under section 212(c) because there is

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no exclusion ground corresponding to the deportation ground for

conviction of a firearms offense. See Matter of Chow, supra; Matter of

Hernandez-Casillas, supra; Matter of Granados, supra. But see BedoyaValencia v. INS, 6 F.3d 891 (2d Cir. 1993) (extending Francis rule to

entry without inspection charge where there could not conceivably be

an analogous ground of exclusion, and allowing application for section

212(c) relief). We reject the respondent's claim that his weapons

conviction could be a constituent of a section 212(a)(2)(B) ground of

excludability (multiple criminal convictions) when combined with his

convictions for manufacture of a controlled substance and malicious

mischief, which could be 'waived by section 212(c). In Matter of

Montenegro, 20 I&N Dec. 603 (BIA 1992), this Board followed the

holdings of Matter of Wadud, supra, and Matter of Granada:, supra,

and rejected the expansion of section 212(c) to include cases where the

ground of deportability charged is not also a ground of inadmissibility,

even where the alien's conviction would also cause him to be

excludable for having been convicted of a crime involving moral

turpitude under section 212(a)(2)(A)(i)(I) of the Act.

We find support, however, in the federal regulations for the

respondent's use of section 212(c) of the Act in conjunction with his

application for adjustment of status. The regulations at 8 C.F.R.

§ 242.17(a) (1993), pertaining to the creation of the status of an alien

lawfully admitted for permanent residence under sections 244(a), 245,

or 249 of the Act, 8 U.S.C. §§ 1254(a), 1255, 1259 (1988 & Supp. IV

1992), provide in pertinent part:

In conjunction with any application for creation of status of an alien lawfully

admitted for permanent residence made to an immigration judge, if the respondent is

inadmissible under any provision of section 212(a) of the Act and believes he meets

the eligibility requirements for a waiver of the ground of inadmissibility, he may

apply to the immigration judge for such waiver.

We specifically note that an alien may apply for both adjustment of

status and section 212(c) relief. The regulations at 8 C.F.R. § 245.1(e)

(1993) provide:

Concurrent applications to overcome exclusionary grounds. Except as provided in

parts 235 and 249 of this chapter, an application under this part shall be the sole

method of requesting the exercise of discretion under section 212(g), (h), (i), and (k)

of the Act, as they relate to the excludability of an alien in the United States. Any

applicant for adjustment under this part may also apply for the benefits of section

212(c) of the Act, for permission to reapply after deportation or removal under

section 212(a)(17) of the Act, and for the benefits of section 212(a)(28)(I)(ii) of the

Act. No fee is required for filing an application to overcome the exclusionary grounds

of the Act if filed concurrently with an application for adjustment of status under the

provisions of the Act of October 28, 1977, and of this part. (Second emphasis added.)

This regulation, allowing requests for discretionary waivers of

inadmissibility under sections 212(g), (h), and (i) of the Act by aliens

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in the United States, was first promulgated by the Commissioner of

the Immigration and Naturalization Service as 8 C.F.R. § 245.1(f) in

30 Fed. Reg. 14,778 (1965), and it was amended at 31 Fed. Reg. 535

(1966). Paragraph (f) of 8 C.F.R. § 245.1 was amended at 31 Fed. Reg.

2373 (1966), and the "Concurrent applications to overcome exclusionary grounds" heading and the sentence providing, "Any applicant for

adjustment under this part may also apply for the benefits of section

212(c) of the Act and for permission to reapply after deportation or

removal," were added. The regulation was also amended at 32 Fed.

Reg. 9632 (1967) (adding benefits under section 212(a)(28)), and at 43

Fed. Reg. 18,644 (1978) (adding last sentence pertaining to fee). In

1982, it was redesignated as 8 C.F.R. § 245.1(d) at 47 Fed. Reg.

12,133 (1982) and revised at 47 Fed. Reg. 44,237 (1982). In 1987, it

was redesignated in its current form at 8 C.F.R. § 245.1(e). See 52

Fed. Reg. 6321 (1987).

Under the provisions of 8 C.F.R. § 245.1(e) (1993), there is no

requirement that section 212(c) of the Act separately and independently waive all grounds of deportability in order for an applicant for

adjustment of status to concurrently apply for relief under sections 245

and 212(c), as argued by the Service. 3 Indeed, such a reading would

render the regulation at 8 C.F.R. § 245.1(e) (1993) meaningless, for

there would be no need to concurrently apply for adjustment of status

to overcome exclusionary grounds if a section 212(c) waiver would

independently waive all grounds of inadmissibility. We note that in.

Matter of Hernandez Casillas, supra, the Attorney General concluded

that although a lawful permanent resident deportable for entering the

United States without inspection is ineligible for section 212(c) relief,

discretionary relief under section 212(c) is otherwise available in

deportation proceedings where the alien requests adjustment of status

under section 245 of the Act. Id. at 32 n.6, 47 n.16. Citing Matter of

Smith, 11 I&N Dec. 325 (BIA 1965), the Attorney General indicated

that if the ground of deportation had been other than illegal entry, a

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3 We do not consider the instant case to be analogous to Matter of Roman, 19 I&N

Dec. 855 (BIA 1988). In Matter of Roman, we found the respondent could not establish

combined eligibility for nuns pro tunc permission to reapply for admission and a waiver

of inadmissibility pursuant to section 241(f) of the Act, where she was not separately

eligible for either form of relict The alien could not "bootstrap" eligibility from one

waiver to the other since she would not be eligible for either form of relief without the

other waiver having first been granted. In the instant case, the respondent does not need

to have his status adjusted to that of a lawful permanent resident before he is eligible to

apply for a waiver under section 212(c) of the Act; he is already a lawful permanent

resident. In the adjustment of status context, a respondent can apply for several waivers,

such as under sections 212(c), (g), (h), and (i) of the Act, in conjunction with his

application for adjustment of status. See 8 C.F.R. § 245.1(e) (1993).

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remand might have been necessary to permit the respondent to seek

adjustment of status under section 245 of the Act. Id. at 47 n.16.4

While we note that the regulation now at 8 C.F.R. § 245.1(e) (1993)

was promulgated before Francis v. INS, supra, (expanding section

212(c) relief to deportable aliens who have not temporarily departed

from the United States), and Matter of Silva, supra, we are not

persuaded by the Service's contention that these cases have mooted the

applicability of this regulation and Matter of Smith, supra. There is no

basis to ignore this regulation on the Service's theory that it is moot. It

is a valid, properly promulgated, currently applicable regulation and

cannot simply be disregarded.

We note that the respondent is not ineligible for adjustment of

status as a result of the weapons offense, and he would not be

deportable as a result of the conviction if his status is adjusted to that

of a lawful permanent resident. See Matter of Rainford, supra. In

Matter of _Rainford we rejected the futility doctrine described in Matter

of V-, 1 UN Dec. 293 (BIA 1942), (that it would be futile to admit

someone only to have him immediately become subject to deportation) in the adjustment of status context. Thus, we held that the alien's

conviction for criminal possession of a weapon did not bar him from

adjustment of status, and that he would no longer be deportable on the

basis of his conviction if granted adjustment of status to that of a

lawful permanent resident. Consequently, we conclude that on the

basis of the regulation at 8 C.F.R. § 245.1(e) (1993), the respondent in

the instant case is eligible to apply for section 212(c) relief in

conjunction with adjustment of status, notwithstanding his weapons

convictions.

Having found that the respondent is admissible to the United States

and therefore eligible to apply for adjustment of status, as well as for

section 212(c) relief, we will remand the case to the immigration judge

to allow the respondent to present his applications for relief. 5 We note

that to be granted adjustment of status and section 212(c) relief, the

respondent will also have to show the immigration judge that he merits

4 In Mauer cofK-L-, 20 184N Dec. 654 (BIA 1993), VA 12 F.36 1102 (8th Cir. 1993),

the Board noted that the respondent, who claimed eligibility for adjustment of status

under section 245 of the Act, was not precluded from applying for that relief because of

his firearms -violation, but because he did not present evidence of an approved visa

petition. We indicated that his inadmissibility as a drug trafficker under section

212(a)(2)(C) of the Act could not be waived under section 212(h), so he was ineligible for

relief. By contrast, in the instant case the respondent is a lawful permanent resident who

can use section 212(c) of the Act to waive his inadmissibility under section

2 i 2(a)(2)(A)(1)(11).

5 In light of our determination in this case, we need not address the other issues raised

by the respondent on appeal.

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the granting of relief in the exercise of discretion. Finally, visa

numbers for first-preference classification will still need to be current.

The appeal is sustained and the record is remanded

ORDER:

to the immigration judge for further proceedings in accordance with

the foregoing opinion and for entry of a new decision.

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