Interim Decision #3291

Interim Decision #3291

Interim Decision #3291

In re Fidel JIMENEZ-Santillano, Respondent

File A90 355 520 - Seattle

Decided July 24, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act,

8 U.S.C. § 1182(c) (1994), is not available to waive an alien’s deportability under section

241(a)(3)(B)(iii) of the Act, 8 U.S.C. § 1251(a)(3)(B)(iii) (1994), as an alien convicted of a violation of 18 U.S.C. § 1546 (1994), because there is no comparable statutory counterpart to section 241(a)(3)(B)(iii) among the various grounds for exclusion enumerated in section 212(a) of

the Act. Matter of Esposito, 21 I&N Dec. 1 (BIA 1995); Matter of Hernandez-Casillas, 20 I&N

Dec. 262 (BIA 1990; A.G. 1991), aff’d, 983 F.2d 231 (5th Cir. 1993); Matter of Wadud, 19 I&N

Dec. 182 (BIA 1984), followed.

FOR THE RESPONDENT: Maria Del Carmen Guerrero, Accredited Representative, El Paso,

Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Robert S. Hough, Assistant District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,

MATHON, and GUENDELSBERGER, Board Members

FILPPU, Board Member:

The respondent, through counsel, has timely appealed from an Immigration Judge’s decision, dated August 1, 1995, finding the respondent

deportable as charged and statutorily ineligible for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(c) (1994), and adjustment of status under the “registry” provisions of

section 249 of the Act, 8 U.S.C. § 1259 (1994). The principal issue on appeal

is whether the respondent can invoke the salutary provisions of section

212(c) to waive his deportability under section 241(a)(3)(B)(iii) of the Act, 8

U.S.C. § 1251(a)(3)(B)(iii) (1994). We find that the Immigration Judge properly answered this query in the negative. The appeal will therefore be

dismissed.

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I. BACKGROUND

The record reflects the following facts. The respondent is a 51-year-old

native and citizen of Mexico who entered the United States on an unknown

date prior to January 1, 1972. On January 12, 1989, the respondent’s immigration status was adjusted to that of a lawful permanent resident, with temporary residence effective June 25, 1987. Subsequently, on August 29, 1994,

the respondent was convicted in the United States District Court for the District of New Mexico of fraud and misuse of documents required for entry into

the United States, in violation of 18 U.S.C. § 1546(a) (1994).1

Count 1 of the indictment, to which the respondent specifically pled

guilty, reads as follows:

1 The statute, 18 U.S.C. § 1546(a), provides as follows:

Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or

nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other

document prescribed by statute or regulation for entry into or as evidence of authorized

stay or employment in the United States, or utters, uses, attempts to use, possesses,

obtains,accepts, or receives any such visa, permit, border crossing card, alien registration

receipt card, or other document prescribed by statute or regulation for entry into or as

evidence of authorized stay or employment in the United States, knowing it to be forged,

counterfeited, altered, or falsely made, or to have been procured by means of any false

claim or statement, or to have been otherwise procured by fraud or unlawfully obtained;

or

Whoever, except under direction of the Attorney General or the Commissioner of the

Immigration and Naturalization Service, or other proper officer, knowingly possesses

any blank permit, or engraves, sells, brings into the United States, or has in his control or

possession any plate in the likeness of a plate designed for the printing of permits, or

makes any print, photograph, or impression in the likeness of any immigrant or

nonimmigrant visa, permit or other document required for entry into the United States, or

has in his possession a distinctive paper which has been adopted by the Attorney General

or the Commissioner of the Immigration and Naturalization Service for the printing of

such visas, permits, or documents; or

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other

document required for entry into the United States, or for admission to the United States

impersonates another, or falsely appears in the name of a deceased individual, or evades

or attempts to evade the immigration laws by appearing under an assumed or fictitious

name without disclosing his true identity, or sells or otherwise disposes of, or offers to

sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person

not authorized by law to receive such document; or

Whoever knowingly makes under oath, or as permitted under penalty of perjury under

section 1746 of title 28, United States Code, knowingly subscribes as true, any false

statement with respect to a material fact in any application, affidavit, or other document

required by the immigration laws or regulations prescribed thereunder, or knowingly

presents any such application, affidavit, or other document containing any such false

statement—

Shall be fined under this title or inprisoned not more than 10 years, or both.

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On or about the 30th day of April 1992, and continuing on through on or about the 21st day

of January, 1993, in Chaves County, in the State and District of New Mexico, the defendants . . . did knowingly sell and otherwise dispose of a document required for entry into the

United States, an alien registration receipt card, that is a Resident Alien Card, Form I-551,

in the name of . . . a person not authorized by law to receive said document.

Thus, the relevant clause of 18 U.S.C. § 1546(a) under which the respondent

was convicted provides:

Whoever . . . sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters,

[an immigrant or nonimmigrant] visa, permit, or other document [required for entry into the

United States], to any person not authorized by law to receive such document . . . [s]hall be

fined under this title or imprisoned not more than 10 years, or both.

The respondent was sentenced to 2 years’ probation for the offense.

At the deportation hearing below, the respondent admitted the factual allegations contained in the Order to Show Cause and Notice of Hearing (Form

I-221) and conceded deportability as charged under section 241(a)(3)(B)(iii)

of the Act. That section provides for the deportation of “[a]ny alien who at

any time has been convicted . . . of a violation of, or an attempt or a conspiracy to violate, section 1546 of title 18, United States Code (relating to fraud

and misuse of visas, permits, and other entry documents).” The respondent

thereupon applied for a waiver of inadmissibility under section 212(c) of the

Act and, in the alternative, adjustment of status under section 249 of the Act

in conjunction with a waiver of inadmissibility under section 212(h) of the

Act. See 8 C.F.R. §§ 242.17(a), 249.1 (1995).

The Immigration Judge determined that the respondent was statutorily

ineligible for both forms of relief. Citing this Board’s decision in Matter of

Wadud, 19 I&N Dec. 182 (BIA 1984), and the Attorney General’s decision in

Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991),

aff’d, 983 F.2d 231 (5th Cir. 1993), the Immigration Judge first held that the

respondent could not invoke section 212(c) to waive his deportability under

section 241(a)(3)(B)(iii) of the Act for his conviction because there is no statutory counterpart to that section among the various grounds of excludability.

Next, citing our decision in Matter of Bufalino, 11 I&N Dec. 351 (BIA 1965),

the Immigration Judge held that the respondent was ineligible for adjustment

of status under section 249 of the Act because he was already a lawful permanent resident and, therefore a record of his lawful admission into the United

States already existed. The Immigration Judge’s finding with respect to the

respondent’s eligibility for “registry” under section 249 of the Act is not contested on appeal, and we do not address it.

II. ISSUE ON APPEAL

On appeal, the respondent highlights the ground of inadmissibility

provided in section 212(a)(6)(C)(i) of the Act relating to fraud or willful misrepresentation of a material fact in procuring a visa, entry into the United

States, or other immigration benefit. He contends that this “willful

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misrepresentation” ground is sufficiently comparable to 18 U.S.C. § 1546(a)

to permit a section 212(c) waiver of his deportability under section

241(a)(3)(B)(iii).2 The respondent argues that his application for such discretionary relief bears “unusual and/or outstanding equities,” including 25 years

of continuous residence in the United States, a lawful permanent resident

spouse, two United States citizen children, other family ties, and certain hardship to the respondent and his family if he is deported. Accordingly, the

respondent requests that we remand the record to the Immigration Judge for

an evidentiary hearing on his eligibility for relief under section 212(c) as a

matter of discretion. The Immigration and Naturalization Service supports

the Immigration Judge’s decision and argues that section 212(c) relief is

unavailable to the respondent to waive his deportability under section

241(a)(3)(B)(iii) of the Act.

Our charge, then, is to determine whether the respondent can invoke section 212(c) of the Act to waive his deportability under section

241(a)(3)(B)(iii). We agree with the Immigration Judge’s holding that a section 212(c) waiver is unavailable in these circumstances.3

III. AVAILABILITY OF SECTION 212(c) WAIVER TO WAIVE

DEPORTABILITY UNDER SECTION 241(a)(3)(B)(iii) OF THE

ACT

Section 212(c) of the Act provides, in pertinent part, 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

2 The respondent also contends on appeal that he is eligible for a waiver of inadmissibility

under section 212(i) of the Act, and that section 212(i) may be applied to waive his deportability

under section 241(a)(3)(B)(iii). See generally Matter of Lazarte, 21 I&N Dec. 214, 216-218

(BIA 1996) (discussing the section 212(i) waiver in a different context). The record reflects,

however, that this issue was neither raised before, nor ruled upon by the Immigration Judge.

Therefore, we will not decide the issue, for it is not properly before us. See Matter of Edwards,

20 I&N Dec. 191, 196 n.4 (BIA 1990); Matter of Garcia-Reyes, 19 I&N Dec. 830, 832 (BIA

1988); cf. Matter of Samai, 17 I&N Dec. 242, 243 (BIA 1980) (holding that an objection raised

for the first time on appeal concerning improper notice of a deportation hearing was not

untimely made because the respondent was previously unrepresented and had not made a

knowing waiver of his procedural rights). We note, in any event, that the respondent’s

contention is baseless because a section 212(i) waiver may be invoked in deportation

proceedings only in conjunction with an application for adjustment of status under section 245

of the Act, 8 U.S.C. § 1255 (1994). See Matter of Gabryelsky, 20 I&N Dec. 750, 754-55 (BIA

1993); 8 C.F.R. §§ 245.1(f), 242.17(a) (1995). The respondent has not demonstrated eligibility

for adjustment of status.

3 We note that the respondent’s commission of a criminal offense covered by section

241(a)(3)(B)(iii) of the Act does not bar him from applying for section 212(c) relief by virtue of

the amendment to section 212(c) included in section 440(d) of the recently enacted

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,

1277 (enacted Apr. 24, 1996) (“AEDPA”). This amendment does not apply to offenses covered

by section 241(a)(3) of the Act.

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unrelinquished domicile of 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds of

excludability. In 1976, the availability of section 212(c) relief was significantly expanded when the United States Court of Appeals for the Second Circuit held that a section 212(c) waiver should be available regardless of

whether the applicant had departed from the United States subsequent to the

acts which rendered him deportable. Francis v. INS, 532 F.2d 268 (2d Cir.

1976). The court held that “[f]undamental fairness dictates that permanent

resident aliens who are in like circumstances, but for irrelevant and fortuitous

factors, be treated in a like manner.” Id. at 273. This Board decided shortly

thereafter to adopt the approach of the Second Circuit nationwide in Matter

of Silva, 16 I&N Dec. 26 (BIA 1976). See generally Matter of Esposito, 21

I&N Dec. 1, at 6-12 (BIA 1995).

In Matter of Hernandez-Casillas, supra, the Attorney General held that a

section 212(c) waiver is available in deportation proceedings only to those

aliens who have been found deportable under a charge of deportability for

which there is a comparable ground of excludability. Id. at 27; see also Matter of Esposito, supra, at 8-11; Matter of Meza, 20 I&N Dec. 257, 258 (BIA

1991); Matter of Wadud, supra, at 184-86; Matter of Granados, 16 I&N Dec.

726, 728 (BIA 1979), aff’d, 624 F.2d 191 (9th Cir. 1980). Of course, it is doctrine that this Board and all Immigration Judges are strictly bound by the

determinations of the Attorney General. See Matter of Esposito, supra, at 11;

8 C.F.R. §§ 3.0 - 3.1(d) (1995).

As we explained in Matter of Esposito, supra, at 7, “the relief provided by

section 212(c) is the waiver of a particular ground of exclusion or deportation, not a waiver of the particular offense which forms the basis for that

ground of exclusion or deportation.” Thus, our focus “is not whether the

deportable alien’s particular offense, in this case a conviction for a [document fraud and misuse offense], could form the basis for a ground of exclusion and therefore be waivable; rather, the focus is whether the ground of

deportation against the alien has a comparable ground of exclusion.” Id.

Section 212(a)(6)(C)(i) of the Act states: “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United

The respondent is also not ineligible for a waiver by virtue of section 101(a)(43)(O) of the

Act, 8 U.S.C. § 1101(a)(43)(O) (1994), which deems an “aggravated felony” any offense

“described in 18 U.S.C. § 1546(a) (relating to document fraud) which constitutes trafficking in

the documents described in such section for which the term of imprisonment imposed . . . is at

least 5 years.” This provision is applicable only to convictions entered on or after October 25,

1994. Moreover, although section 440(e)(4) of the AEDPA, 110 Stat. at 1278, amends the

aggravated felony provision to include any offense “described in 18 U.S.C. § 1546(a) (relating

to document fraud) . . . for which the term of imprisonment imposed (regardless of any

suspension of such imprisonment) is at least 18 months,” this amendment does not appear to

apply to convictions entered before April 24, 1996. In any case, the respondent was sentenced

to a term of less than 18 months’ imprisonment.

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States or other benefit provided under this Act is excludable.” The respondent argues that this “willful misrepresentation” ground of inadmissibility is

comparable to 18 U.S.C. § 1546(a), the provision upon which his

deportability under section 241(a)(3)(B)(iii) is founded. We disagree.

A. Board Precedent

As noted above, section 241(a)(3)(B)(iii) of the Act provides that “[a]ny

alien who at any time has been convicted . . . of a violation of, or an attempt or

a conspiracy to violate, section 1546 of title 18, United States Code (relating

to fraud and misuse of visas, permits, and other entry documents), is

deportable.” This ground of deportability was previously designated as section 241(a)(5) of the Act, 8 U.S.C. § 1251(a)(5) (1988). The relevant statutory language of section 241(a)(3)(B)(iii) and the former section 241(a)(5) is

identical. See Matter of Wadud, supra, at 184 n.2.

In Matter of R-G-, 8 I&N Dec. 128 (BIA 1958), this Board first had occasion to address whether former section 241(a)(5) had a statutory counterpart

among the various excludability grounds enumerated in section 212(a) of the

Act. Although Matter of R-G- distantly predates the expansion of coverage of

section 212(c) to grounds of deportability for which there exists a comparable ground of excludability, we noted in that case that there was no “specific”

statutory ground for the exclusion of aliens who would be subject to deportation under section 241(a)(5) of the Act due to a prior conviction for document

fraud or misuse under 18 U.S.C. § 1546. Id. at 129.

Thirty years later in Matter of Wadud, supra, we further held that there is

no exclusion ground “comparable” to 18 U.S.C. § 1546. In that case, the

respondent contended that because the crime underlying his conviction under

18 U.S.C. § 1546 and his deportability under section 241(a)(5) was arguably

a crime involving moral turpitude (“CIMT”) and there was a ground of inadmissibility for aliens convicted of a CIMT, see former section 212(a)(9),

8 U.S.C. § 1182(a)(9) (1982),4 section 212(c) should be available to him in

deportation proceedings. In dismissing the respondent’s contention that section 212(a)(9) and 18 U.S.C. § 1546 were comparable, we observed that we

did not need to decide whether the respondent’s “section 1546 offense” was a

CIMT because no ground of inadmissibility enumerated in section 212(a) of

the Act at the time was comparable to 18 U.S.C. § 1546, including section

212(a)(9), the CIMT provision. Id. at 185. We stated unconditionally that

“section 241(a)(5) of the Act . . . has no comparable ground of excludability

among those specified in section 212(c).” Id. Among the grounds specified in

section 212(c) at the time was the former section 212(a)(19), the nearly

4 The former section 212(a)(9) of the Act has subsequently been revised and redesignated as

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

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identical precursor to section 212(a)(6)(C)(i), the “willful misrepresentation”

excludability provision at issue in this case.5

B. Comparability of Sections 212(a)(6)(C)(i) and

241(a)(3)(B)(iii) of the Act

Upon review, we now specifically reject the respondent’s contention that

excludability under section 212(a)(6)(C)(i) of the Act for fraud or willful

misrepresentation of a material fact before an immigration official to procure

an immigration benefit such as a visa or entry into the United States is comparable to deportability under section 241(a)(3)(B)(iii) for criminal convictions

for document fraud or misuse under 18 U.S.C. § 1546(a). Section

212(a)(6)(C)(i) quite broadly refers to fraud or misuse of entry documents as

it relates to procuring entry into the United States or another immigration

benefit. However, the conduct proscribed by 18 U.S.C. § 1546, which may

carry a penalty of up to 10 years’ imprisonment, goes well beyond the type of

fraud or misrepresentations before an immigration officer that might underlie

an alien’s excludability under section 212(a)(6)(C)(i).

As is plain from a reading of the statute, 18 U.S.C. § 1546(a) indeed targets some conduct, such as presenting an application, affidavit, or other document containing a false statement with respect to a material fact in order to

procure an immigration benefit, that may also constitute grounds for exclusion under section 212(a)(6)(C)(i). However, 18 U.S.C. § 1546(a) also

encompasses more serious document fraud and misuse offenses not contemplated by the “willful misrepresentation” language of section 212(a)(6)

(C)(i), including the crime of selling visas, permits, and other immigration

documents, of which the respondent was convicted and upon which his

deportability is predicated. The vastly greater scope of 18 U.S.C. § 1546(a) is

a significant factor in our determination that these provisions are not “comparable” for section 212(c) waiver purposes.

The acts falling within the reach of 18 U.S.C. § 1546(a) include forging,

counterfeiting, and falsifying documents required for entry, as well as the

unauthorized possession of equipment designed for the reproduction of such

documents, regardless of whether the proscribed acts were performed for

5 The only ground of inadmissibility not in existence at the time of our decision in Wadud

that is at least remotely proximate to section 241(a)(3)(B)(iii) is section 212(a)(6)(F) of the Act,

which states: “Any alien who is the subject of a final order for violation of section 274C is

excludable.” Section 274C of the Act, 8 U.S.C. § 1324c (1994), added to the statute by section

544(c) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 5059 (enacted Nov. 29,

1990), imposes civil penalties for document fraud. See Matter of Lazarte, supra (holding that a

section 212(i) waiver could not be used to waive inadmissibility under section 212(a)(6)(F) of

the Act). The issue of the comparability of sections 241(a)(3)(B)(iii) and 212(a)(6)(F) is not

before us. We, therefore, leave it for another day. We note in passing, however, that Congress

provided an identical statutory counterpart to section 212(a)(6)(F) among the various grounds

of deportability at section 241(a)(3)(C) of the Act. See Matter of Lazarte, supra.

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personal use to procure an immigration benefit or merely for personal gain,

financial or otherwise. E.g., United States v. Hammoude, 51 F.3d 288 (D.C.

Cir.) (ongoing scheme of reproduction of fraudulent visas), cert. denied, 515

U.S. 1128 (1995). The coverage of the statute also extends to fraud or misuse

of immigration documents in furtherance of marriage fraud schemes, e.g.,

United States v. Lozano, 511 F.2d 1 (7th Cir.), cert. denied, 423 U.S. 850

(1975); United States v. Ramos, 605 F. Supp. 277 (S.D.N.Y. 1985), and

knowingly accepting, possessing, or using fraudulent immigration documents, regardless of whether their acceptance, possession, or use is to procure an immigration benefit, e.g., Matter of Serna, 20 I&N Dec. 579 (BIA

1992); Matter of Cadiz, 12 I&N Dec. 560 (BIA 1968). Furthermore, the language of section 212(a)(6)(C)(i) makes absolutely no mention of criminal

convictions for document fraud or misuse.

Moreover, we find inconsequential the fact that the conduct constituting

the basis for an alien’s conviction under 18 U.S.C. § 1546 and deportability

under section 241(a)(3)(B)(iii) could possibly also render him inadmissible

under section 212(a)(6)(C)(i) if the fraud or misuse of entry documents was

committed while attempting to procure entry into the United States or

another immigration benefit. As we recently explained in Matter of Esposito,

supra, “we have previously addressed and rejected similar efforts to establish

eligibility for section 212(c) relief in deportation proceedings, notwithstanding the lack of an exclusion ground comparable to the ground of deportation,

by subsuming the respondent’s conduct or offense under some exclusion

ground.” Id. at 13 (citing Matter of Montenegro, 20 I&N Dec. 603 (BIA

1992), and Matter of Wadud, supra). The essential analysis is to determine

whether the deportation ground under which the alien has been adjudged

deportable has a statutory counterpart among the exclusion grounds waivable

by section 212(c). Matter of Hernandez-Casillas, supra, at 286-89.

The respondent’s particular offense tellingly illustrates that 18 U.S.C.

§ 1546(a) and the “willful misrepresentation” ground of inadmissibility at

section 212(a)(6)(C)(i) of the Act are neither “comparable,” Matter of Meza,

supra; Matter of Wadud, supra, “substantially identical,” Cabasug v. INS,

847 F.2d 1321, 1326 (9th Cir. 1988), quoted in Matter of HernandezCasillas, supra, at 267, nor “equivalent,” Matter of Hernandez-Casillas,

supra, at 287. The record reflects that the respondent was convicted under 18

U.S.C. § 1546(a) for having knowingly sold, over a period of approximately

9 months, an alien registration receipt card in the name of a person not authorized by law to receive said document. The respondent himself was a lawful

permanent resident in possession of valid immigration documents required

for entry.

Thus, if the respondent had departed from the United States following his

conviction under 18 U.S.C. § 1546(a) and completion of his sentence and

thereafter sought reentry as a returning permanent resident, it appears that he

would not have been inadmissible under section 212(a)(6)(C)(i) of the Act,

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notwithstanding his deportability for the 18 U.S.C. § 1546(a) conviction. The

same would be true if the respondent had been convicted in the United States

of a “firearms offense,” as defined under section 241(a)(2)(C) of the Act. See

Matter of Esposito, supra, and cases cited therein.

It would indeed be remarkable if a section 212(c) waiver were available to

an alien in deportation proceedings when that same alien would not have

occasion to seek such relief were he in exclusion proceedings instead. We are

satisfied, upon review, that the legitimate concerns of equal protection and

fundamental fairness that gave rise to the seminal holdings in Francis v. INS,

supra, and Matter of Silva, supra, are not implicated in the instant case.

See Matter of Hernandez-Casillas, supra, at 287-89; Matter of Wadud,

supra, at 185.

C. Further Support

Further support for the dissimilarity between 18 U.S.C. § 1546(a) and the

section 212(a)(6)(C)(i) “willful misrepresentation” ground of inadmissibility

may be found by reference to a dated, yet no less germane, decision of the

Second Circuit, DeLeon v. INS, 547 F.2d 142 (2d Cir. 1976), cert. denied,

434 U.S. 841 (1977). In DeLeon, the Second Circuit Court of Appeals

addressed the issue of whether a waiver of deportability under the former section 241(f) of the Act, 8 U.S.C. § 1251(f) (1970),6 is available to an alien

found deportable under former section 241(a)(5) for having been convicted

of document fraud and misuse under 18 U.S.C. § 1546. Because section

241(f) waived an alien’s deportability under the former section 241(a)(1) as

one who was excludable at entry under section 212(a)(19), the precursor to

the “willful misrepresentation” provisions of section 212(a)(6)(C)(i), the

Second Circuit was obliged to assess the comparability of 18 U.S.C. § 1546

and 212(a)(19) in light of the Supreme Court’s pronouncements in Reid v.

INS, 420 U.S. 619 (1975), and INS v. Errico, 385 U.S. 214 (1966).

Upon analyzing the two provisions, the court in DeLeon v. INS, supra,

ultimately held that 18 U.S.C. § 1546 and the former section 212(a)(19) of

the Act were not comparable and that the respondent, who was deportable

under section 241(a)(5) for having been convicted under 18 U.S.C. § 1546

for impersonating a lawful permanent resident alien at the time of entry,

could not avail himself of a waiver of deportability under section 241(f). The

court reasoned that in specifying a conviction under 18 U.S.C. § 1546 as a

separate ground of deportability, Congress in section 241(a)(5) had singled

out the acts covered by 18 U.S.C. § 1546 as “serious offense[s] distinct from

the relatively minor misrepresentations which might provide a basis for

deportability under Sections 212(a)(19) and 241(a)(1).” Id. at 148. The court

6 The provisions of section 241(f) were repealed by section 602(b)(1) of the Immigration Act

of 1990, 104 Stat. at 5081. Similar provisions now appear at section 241(a)(1)(H) of the Act.

See generally Matter of Garawan, 20 I&N Dec. 938, 940-41 & n.3 (BIA 1995).

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further observed that “[i]t would be anomalous to hold that deportability

under Section 241(a)(5) for a conviction under 18 U.S.C. § 1546 can be

waived simply because it involved a fraud and was committed at the time of

entry.” Id. According to the court, the fraud targeted by 18 U.S.C. § 1546

“clearly is not in the same category as the relatively less serious fraudulent

conduct contemplated by Section 212(a)(19).” Id. at 148-49.

D. Practical Considerations

In addition, we find it clear that 18 U.S.C. § 1546(a) and section

212(a)(6)(C)(i) are not coextensive in their coverage of offenses. Were we to

permit a waiver for aliens who are deportable for having been convicted

under one or more of the labyrinthine criminal provisions of 18 U.S.C.

§ 1546(a), this Board and the Immigration Judges would be obliged to scrutinize the particular conduct of the alien that gave rise to his culpability under

18 U.S.C. § 1546(a) to determine whether the underlying offense is covered

by section 212(a)(6)(C)(i). Not only is this precisely the sort of analysis we

specifically rejected in Matter of Esposito, supra, at 8-10 (relying on the

Attorney General’s opinion in Matter of Hernandez-Casillas, supra), but it is

also one that would likely prove to be considerably cumbersome in practice.7

For example, in a given case, an alien may have been convicted of violating several different subclauses of 18 U.S.C. § 1546(a), yet his deportability

would not depend upon which of the manifold subclauses he flouted. His

final conviction under 18 U.S.C. § 1546(a), irrespective of the particular subclause, would be sufficient to sustain a charge of deportability under section

241(a)(3)(B)(iii) of the Act. To require Immigration Judges to ascertain what

specific crimes the alien committed, whether some or all of the alien’s criminal conduct is comparable to that targeted by section 212(a)(6)(C)(i) of the

Act and, if so, whether a section 212(c) waiver should be available to the

alien would not only contradict our precedent, but also impose upon Immigration Judges virtually insoluble quandaries likely resulting in widely disparate results. If, on the other hand, we held that a section 212(c) waiver was

available to all aliens convicted under 18 U.S.C. § 1546(a) and found

deportable under section 241(a)(3)(B)(iii) of the Act, we would be embarking on the type of extended and unnecessary departure from the text of

7 In Matter of Meza, 20 I&N Dec. 257, 259 (BIA 1991), this Board held that because

Congress had specifically provided for the availability of section 212(c) relief to respondents

deportable for “aggravated felony” convictions although no “aggravated felony” exclusion

ground exists, we will look to the specific category of felony at issue to determine whether the

offense would be encompassed within the scope of an exclusion ground for purposes of

ascertaining the availability of a section 212(c) waiver. We note, however, that the Board has

significantly limited the holding of Meza to its peculiar facts in subsequent decisions in Matter

of Esposito, 21 I&N Dec. 1, at 9-10 (BIA 1995), and Matter of Montenegro, 20 I&N Dec. 603,

605-06 (BIA 1992).

576

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section 212(c) that the Attorney General repudiated in Matter of HernandezCasillas, supra.

IV. CONCLUSION

For the foregoing reasons, then, we conclude that an alien convicted under

18 U.S.C. § 1546(a) of a document fraud or misuse offense described therein

may not invoke section 212(c) of the Act to waive his deportability under section 241(a)(3)(B)(iii). Accordingly, inasmuch as there are no other issues

before us, the Immigration Judge’s decision is affirmed, and the appeal will

be dismissed.

ORDER:

The appeal is dismissed.

577