Interim Decision #2819

Interim Decision #2819

MATTER OF BOWE

In Deportation Proceedings

A-17261914

Decided by Board August 28, 1980; December 17, 1980

and April 23, 1981

(1) In Bowe v. INS, 597 F.2d 1158 (9 Cir. 1979), and Nicholas v. INS, 590 F.2d 802 (9 Cir.

1979), the Ninth Circuit held that relief under section 212(c) of the Immigration and

Nationality Act, 8 U.S.C. 1182(c), was unavailable to aliens who are deportable under

section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).

(2) Board wag bound by these Ninth Circuit decisions; regarding unavailability of section

212(e) waivers to aliens facing deportation under section 241(a)(11) in the Ninth

Circuit.

(3) Where the Ninth Circuit in Tapia-Acuna v. INS, 640 F.2d 223 (9 Cir. 1981), reverses

Sts prior decisions in Bowe v. INS, supra, and Nicholas, supra, and where the Immigration and Naturalization Service withdraws request for certification of case to Attorney General, Board remands record to enable, respondent to present section 212(c)

application to immigration judge, as such relief is again available in that Circuit

CHARGE:

Order. Act of 1952—See. 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of violation of

law relating to narcotic drugs or marijuana

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Paul W. Schmidt

Deputy General Counsel

Donald L. Ungar, Esquire

517 Washington Street

San Francisco, California 94111

Jim. Tom Haynes

Appellate Trial Attorney

BEFORE THE BOARD

August 28, 1980

BY:

Milhollan, Chairman; Maniatis, and Farb, Board Members. Board Member

Maguire, Concurring; Board Member Appleman, Dissenting.

The respondent has filed a motion to reopen his deportation proceedings so that he may file an application for a waiver under section 212(e)

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Interim Decision #2819

of the Immigration and Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of status application under section 245 of the

Act, 8 U.S.C. 1255. The Immigration and Naturalization Service does

not oppose the motion. Nevertheless, the motion will be denied.

Previously, on February 14, 1978, this Board denied the respondent's

212(c) application as a matter of discretion. The United States Court of

Appeals for the Ninth Circuit, on April 23, 1979, affirmed the Board on

the ground that 212(c) relief is unavailable to an alien who is deportable for a drug offense under section 241(a)(11) of the Act, 8 U.S.C.

1251(a)(11). Bowe v. INS, 597 F.2d 1158 (9 Cir. 1979). The respondent

argues that he can obtain the relief now sought, despite the ruling of

the Ninth Circuit, because the 212(c) application previously before the

Board and the Court was not made in conjunction with an adjustment

application.' The Service, in its memorandum supporting the motion,

urges the Board to disregard the Ninth Circuit precedent decisions

cited in Bowe and to adhere to the Board's decision in Matter of Silva,

16 I&N Dee. 26 (BIA 197E). We stated there, following Francis v. INS,

532 F.2d 268 (2 Cir. 197E), that an alien convicted of a crime which

renders him excludable is eligible to apply in deportation proceedings

for the benefits of section 212(c) if he has the requisite lawful unrelinquished domicile, even if he is not an applicant for readmission from

outside the United States, and has not been such an applicant since the

act which rendered him excludable.

We do not accept the Service's suggestion that Matter of Mangabat,

14 I&N Dec. 75 (BIA 1972), Ord, 477 F.2d 108 (9 Cir. 1973), cert. denied,

414 U.S. 841 (1973), allows us to reject Ninth Circuit precedents regarding section 212(e) in the case now before us. In Matter of Mangabat, the

Board declined to apply a Ninth Circuit precedent in a case arising in

that circuit. It was emphasized, however, that the position taken by the

Ninth Circuit on the issue involved there (the availability of section

241(f) relief) had been expressly disapproved by the Attorney General,

and the Solicitor General had challenged the Court's position in a

petition for certiorari filed in the Supreme Court. In the present case,

no representation has been made that the Attorney General agrees

with the Service's position that the Ninth Circuit has erred in its

interpretation of section 212(c), and that he is willing to support a

petition for certiorari to the Supreme Court in an appropriate case.

The fact that the respondent's 212(c) application is now made in

conjunction with a 245 application does not change the fact that in

' The respondent married a United States citizen on December 9, 1977. A visa petition

was filed by the respondent's wife on October 11, 1979, together with the respondent's I485 adjustment application. Also, the respondent recently completed his period of

probation (evidence of rehabilitation relevant to applications for discretionary relief).

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Interim Decision #2819

Bowe, the Court flatly stated that 212(c) relief is unavailable to aliens

facing deportation under section 241(a)(11) for drug offenses. Further-

more, we disagree that we are free to decline to follow the Ninth

Circuit's decision in Bowe, supra, in Bowe's own case. We believe that

the Court's decision in Bowe is, res judicator and binding on this Board.

Although the Court cites in Bowe, id., a series of Ninth Circuit

decisions as if they consistently provided the same legal interpretation, analysis reveals variations which leave us confused. This line of

cases began with Arias-Uribe v. INS, 466 F2d 1198 (9 Cir. 1972). AriasUribe involved an alien who was deportable under section 241(a)(11)

for a narcotics violation, and who sought relief from deportation under

section 212(c). The Court discussed certain Board decisions regarding

the availability of 212(c) relief in deportation proceedings, but distinguished them from the case before it because the aliens in the Board

cases had been excludable at the time they last entered the United

States.' Of these cases, the Court wrote,

The Board held that discretionary relief was available and might be granted to effect a

retroactive waiver of the ground of excludability existing at the time of the subject's

entry and that if such relief was granted, then the basis for his deportation was

entirely eliminated. Petitioner, however, is in a different situation. His deportation is

sought, not because he was excludable at the time he last entered the United States, but

because he was convicted of a narcotics offense of entering the United States. The

Attorney General Is not given discretion by the Immigration laws to waive or suspend

deportation for narcotics of fenders, nor is he authorized, once proceedings under

f 241(a) are begun, to allow such persons to leave the country voluntarily in lieu of

deportation. See 8 U.S.C. f 1254(a), (e).$ Id. at 1199. (Emphasis added.)

The actual holding in this case is somewhat unclear, especially given

the last sentence in the quoted passage, but we read the decision to

mean that the respondent could not obtain a 212(c) waiver because he

had not departed from the United States since the commission of the

act which rendered him excludable. A tune pro tune waiver of excludability could thus not be used, as it had been in the Board cases

cited. The headnote in Arias-Uribe, id., appear to say that ineligibility

for 212(c) relief arises from the drug related nature of the ground of

deportability, but that is not our understanding of what the decision

The cases distinguished by the Court were Matter of Eng,12I&N Dec. 855 (Mk 1968),

Matter of G—A—, 7 I&N Dec. 274 (BIA 1956), and Matter of S—, 6 I&N Dec. 392 (BIA

1954, A.G. 1955). Matter of Smith, 11 I&N Dec. 325 (BIA 1965) was also mentioned, but

distinguished on other grounds in a footnote. Smith. will be discussed at further length,

infra.

'We note that, contrary to the Court's statement, section 244(a)(2) of the Act, 8 U.S.C.

1254(a)(2) does allow narcotics offenders to obtain suspension of deportation, albeit

under somewhat more limited circumstances than other deportable aliens.

section 244(e) makes voluntary departure more difficult for drug offenders to obtain, but

not impossible. Neither section 244(a) nor (e) mentions waivers of deportability at all.

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•

itself says. We believe the case is more properly read to stand for the

proposition that 212(c) relief was unavailable because the respondent

had not departed from the United States since the time of his

conviction.

Our interpretation of Arias-Uribe, id., is supported by the next

Ninth Circuit case to address section 212(e), Dunn v. INS, 499 F.2d 856

(9 Cir. 1974), cert. denied, 419 U.S. 1106 (1975). This case, like AriasUribe, involved an alien who was deportable under section 241(a)(11) of

the Act. Dunn did not discuss 212(c) at any length; rather, it quickly

disposed of the respondent's 212(c) claim by stating,

Petitioner urges that he should be eligible for discretionary relief from deportation

under 212(c) of the Act, S U.S.C. § 1182(c), even though he is not technically "returning

to the United States after a voluntary departure." In effect Petitioner is requesting

advance permission to return to an unrelinquished domicile, despite the fact that

otherwise he would be ineligible for admittance under 212(a)(23), 8 U.S.C.

§ 1182(a)(23), as an "alien who has been convicted of a violation of ... any law or

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

marihuana." As petitioner recognizes in his brief, this precise contention was rejected by this

court in Arias- Uribe v. Immigration and Naturalization Service, 466 F.2d 1198 (9 Cir.

1972). We remain persuaded that this case properly interprets the statute. Id. at 857858.

Despite another somewhat misleading headnote, we believe that the

key to the result in Dunn, like that in Arias-Uribe, supra, is the

absence of a departure after the alien's excludable act. That the

excludable act in both cases happened to be a drug offense appears to

be incidental, not determinative.

The next two eases of interest are Nicholas v. INS, 590 F.2d 802 (9

Cir. 1979), and Bowe, supra. In Nicholas, the Court addressed several

issues, but with respect to 212(c) it had only this to say: "Relief under

212(c) has been held to be unavailable to an alien facing deportation

for conviction of a drug-related crime, pursuant to 8 U.S.C.

1251(a)(11)." The authority it cites for this rule: Arias-Uribe, supra,

and Dunn, supra. Bowe, supra, cited this exact language in finding this

respondent ineligible for 212(c) relief. It simply added Nicholas, supra,

to its list of authority. No further discussion of the issue was offered.

Another Ninth Circuit case to mention section 212(c), Castillo Felix

v. INS, 601 F.2d 459 (9 Cir. 1979), did not involve alien drug offender,

and did not directly address the problems at issue here. In an interesting footnote, however, the Court mentioned "an apparent conflict

between this circuit and the Second Circuit," noting that the Second

Circuit in Francis v. INS, supra, held that the denial of section 212(c)

relief to aliens who had not fortuitously departed from the United

States after committing an excludable offense, while granting it to

those who had, was a violation of equal protection. The Second Circuit

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itself says. We believe the case is more properly read to stand for the

proposition that 212(c) relief was unavailable because the respondent

had not departed from the United States since the time of his

conviction_

Our interpretation of Arias-Uribe, id., is supported by the next

Ninth Circuit case to address section 212(c), Dunn v. INS, 499 F.2d 856

(9 Cir. 1974), cert. denied, 419 U.S. 1106 (1975). This case, like AriasUribe, involved an alien who was deportable under section 241(a)(11) of

the Act. Dann did not discuss 212(c) at any length; rather, it quickly

disposed of the respondent's 212(c) claim by stating,

Petitioner urges that he should be eligible for discretionary relief from deportation

under 212(e) of the Act, 8 U.S.C- § 1182(c), even though he is not technically "returning

to the United States after a voluntary departure." In effect Petitioner is requesting

advance permission to return to an unrelinquished domicile, despite the fact that

otherwise he would be ineligible for admittance under 212(a)(23), 8 U.S.C.

§ 1182(a)(23), as an "alien who has been convicted of a violation of ... any law or

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

marihuana_"

As petitioner recognizes in his brief, this precise contention was rejected by this

court in Arias-Uribe v. Immigration and Naturalization Service, 466 F.2d 1198 (9 Cir.

1972). We remain persuaded that this case properly interprets the statute. Id. at 857858.

Despite another somewhat misleading headnote, we believe that the

key to the result in Dunn, like that in Arias-Uribe, supra, is the

absence of a departure after the alien's excludable act. That the

excludable act in both cases happened to be a drug offense appears to

be incidental, not determinative.

The next two cases of interest are Nicholas v. INS, 590 F.2d 802 (9

Cir. 1979), and Bowe, supra. In Nicholas, the Court addressed several

issues, but with respect to 212(c) it had only this to say: "Relief under

212(c) has been held to be unavailable to an alien facing deportation

for conviction of a drug-related crime, pursuant to 8 U.S.C.

1251(a)(11)." The authority it cites for this rule: Arias-Uribe, supra,

and Dunn, supra. Bowe, supra, cited this exact language in finding this

respondent ineligible for 212(c) relief. It simply added Nicholas, supra,

to its list of authority. No further discussion of the issue was offered.

Another Ninth Circuit case to mention section 212(c), Castillo Felix

v. INS, 601 F.2d 459 (9 Cir. 1979), did not involve alien drug offender,

and did not directly address the problems at issue here. In an interesting footnote, however, the Court mentioned "an apparent conflict

between this circuit and the Second Circuit," noting that the Second

Circuit in Francis v. INS, supra, held that the denial of section 212(c)

relief to aliens who had not fortuitously departed from the United.

States after committing an excludable offense, while granting it to

those who had, was a violation of equal protection. The Second Circuit

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therefore held 212(c) to be available whether or not the "actual departure" requirement of that section had been met. The Ninth Circuit,

after describing Frauds, and adding that the INS [sic] had "acquiesced" in the Francis holding (in Matter of Silva, supra) (in fact it was

this Board, not the Service, which determined to apply Francis, supra,

nationwide), stated, "This circuit, however, continues to recognize the

actual departure requirement." Castillo-Felix at 462, n.6. It cited for

this comment its prior decisions in Arias-Uribe, supra, and Dunn,

supra. Castillo-Felix thus lends support to our analysis of the line of

Ninth Circuit 212(c) cases, and to our belief that Nicholas and Bowe,

supra, misinterpreted Arias-Uribe and Dunn, supra, inasmuch as the

latter two cases appear to us to turn on the lack of a departure, not on

the drug-related nature of the offense.

The most recent published decision of the Ninth Circuit addressing

F.2d , No. 78-3051(9 Cir.

section 212(c), Mondragon v . llchert,

January 25, 1980), added further confusion to this area. In a broad

holding it flatly stated that,

Although several circuits and the Board of Immigration Appeals have extended the

applicability of section 1182(c) to deportation proceedings such as this under f 1454

this circuit has declined to do so.

The cases it cited for this proposition were not Castillo-Felix, AriasUrthe, or Dunn, supra, but rather Rowe and Nicholas, supra, the eases

holding section 212(c) to be unavailable to drug offenders. Mondragon,

we also note, did not involve an alien who was deportable on drugrelated charges; it involved an alien deportable under section 241(a)(2)

for entry without inspection. Also, unlike the other Ninth Circuit cases

discussed, Mondragon involved an alien who had departed from the

United States since the Act rendering him excludable. He had then

reentered, and the Court found 312(c) to be unavailable simply because

he was in deportation proceedings.

None of the Ninth Circuit cases discussed above has explained why

section 212(e) should be unavailable to drug offenders, particularly in

deportation proceedings. That section in fact includes drug offenders

within its stated terms. To be sure, it specifies that the waiver is

available to aliens who are excludable as drug offenders under section

212(a)(23), and does not mention aliens who are deportable as persons

convicted of drug related crimes under section 241(a)(11). So far the

Court has not explained how the apparently anomalous results the line

of cases discussed above may produce would be reconcilable with the

legislative intent that excludability of some narcotic offenders may be

waived.

We are not persuaded by the respondent's argument that reopening

is warranted because his case is now presented in a wholly different

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posture in that his 212(c) application is now made in conjunction with

a section 245 appliCation. He claims that the actual departure requirement of Arias-Uribe, Dunn, and Castillo-Felix, supra, is met because

he, as an applicant for adjustment, is now in the position of one seeking

to make a new entry. He relies for this theory on Matter of Smith, 11

I&N Dec. 325 (BIA 1965). In Smith, which predated the Francis and

Silva holdings, supra, this Board held that a 212(c) application could be

considered in conjunction with an adjustment of status application in

deportation proceedings. The rationale was that,

An applicant for adjustment of status under section 245 stands in the same position as

an applicant who seeks to enter the United States with an immigration visa for

permanent residence.... Since this respondent, as an applicant for relief under section 245, is subject to all of the exclusion provisions of section 212(a), we find no valid

reason for denying him the benefits of section 212(c) on the technical ground that he is

not returning to the United States after a voluntary departure. Matter ofSmith, supra,

at 326-327.

Matter of Smith, id., may still be relevant law in the Ninth Circuit

(outside of that Circuit, where Francis and Silva, supra, control, the

need for Smith has been obviated), but, even if accepted as the law in

that Circuit, it would solve only the actual departure problem; it could

not negate the Ninth Circuit's decisions holding 212(c) relief unavailable to drug offenders. The respondent argues that the decisions in

Nicholas and Bowe, supra, were wrong in finding 212(c) unavailable to

drug offenders, and that those decisions were not supported by the

cases on which they relied, Arias-Uribe and Dunn, supra. We are,

however, bound by the Ninth Circuit's decision in Bowe's own case,

holding 212(c) strictly unavailable to him because he is deportable

under section 241(a)(11). The section 245 application does not change

this essential fact. Moreover, we believe that other aliens in Bowe's

position, who are deportable under section 241(a)(11), are ineligible for

212(c) relief in the Ninth Circuit and that Nicholas, supra, and Bowe,

supra, require this Board to find them so.

As we hold that the Court's rulings are binding upon us, we have no

alternative but to deny this motion.

ORDERS The motion is denied.

Mary P. Maguire, Board Member

While I concur in the result, I would deny the motion to reopen and

CONCURRING OPINION:

' The Ninth Circuit in Arias- Uribe, supra, specifically reserved the question of whether

Matter of Smith, supra, correctly interpreted the law. Arias - Uribe at 1199, n.& It thus

remains an open questiun whether a non departing, non-dreg offender alien may obtain

a 212(c) waiver in conjunction• with adjustment of status in the Ninth Circuit. The recent

broad holding in Mondragon, supra, may, however, indicate that the Ninth Circuit would

not accept the Smith decision.

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hold that an applicant for adjustment of status under section 245 of the

Act is not eligible for section 212(c) relief_

Thiscase illustrates the problems which result from strained interpretations of the Immigration and Nationality Act. The language of

section 212(c) of the Immigration and Nationality Act is clear: an alien

is eligible for a waiver of certain grounds of inadmissibility, including

a narcotics conviction, if he is a lawful permanent resident who

temporarily and voluntarily departed the United States and who is

returning to a lawful unrelinquished domicile in the United States for

seven consecutive years prior to reentry.

This Board began diluting such requirements in a line of cases which

prompted the Second. Circuit to hold in Francis v. INS, 532 F.2d 268 (2

Cir. 1976), that a lawful permanent resident who became deportable

after entry was eligible for section 212(c) relief even though he had

never made a temporary departure and reentry. The Francis decision

was adopted by this Board and applied on a nation wide basis in Matter

of Silva, 16 I&N Dec. 26 (BIA 1976).

The majority states that the cases cited by the Ninth Circuit in Bowe

v. INS, 597 le.2d 1158 (9 CU. 1979), affirming the Board's denial in

discretion of the respondent's application for section 212(c) relief, are

confusing. Such confusion results from a reading of the headnotes, not

from a reading of the Court's decisions. What is clear from the various

Ninth Circuit decisions analyzed in the majority opinion is that the

Ninth Circuit has continued to apply section 212(c) as it was intended

to be applied, i.e., as a waiver for a ground of excludability for a

returning lawful permanent resident alien.

In my. opinion, the majority erroneously reads the Ninth Circuit

decisions as holding that section 212(c) relief is unavailable to drug

offenders. Such a reading does not go far enough. I read Ninth Circuit

decisions to hold that section 212(c) relief is available to a drug

offender only if he voluntarily departs the United States and is inadmissible under section 212(a)(22) as a convicted drug offender upon his

return_ Since this respondent never departed the United States after

his drug conviction, he is not entitled to section 212(c) relief. Bowe v.

INS, supra.

Because the majority misreads the Ninth Circuit's decisions relating

to the availability of section 212(c) relief, the majority finds that

Matter of Smith,11 I&N Dec. 325 (BIA 1965), may still be relevant law

in the Ninth Circuit. In Smith, this Board held that a section 212(c)

application could be considered in conjunction with a section 245

adjustment of status application in deportation proceedings. The

majority indicates that Smith would solve the actual departure problem but would not negate the Ninth Circuit's decisions holding 212(c)

relief unavailable to drug offenders.

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Such a conclusion is based on an erroneous premise which indicates

a lack of understanding of the Ninth Circuit position with respect to

the actual departure requirement and a failure to recognize the nature

of adjustment of status under section 245 of the Act. The majority,

therefore, does not address fully the impact of Smith on this case. If

one were to apply the holding in Smith to this respondent, he would be

prima facie eligible to apply for section 245 adjustment of status since

he is the beneficiary of an approved visa petition, has an immigrant

visa immediately available to him, was inspected on his last admission,

and has submitted a section 212(c) application. But Smith creates a

fictional remedy for the non-departing alien who has become deportable after entry. It oversimplifies completely, in my opinion, the nature

of adjustment of status. In Smith, the Board reasoned that an applicant for adjustment of status under section 245 stands in the same

position as an applicant who is seeking entry into the United States

with an immigrant visa for permanent residence. With that premise I

have no quarrel. The Board then went on to state that an applicant for

section 245 adjustment of status is subject to all of the exclusion

provisions of section 212(a). Again, I have no quarrel with that

statement.

However, I cannot make the leap from those two premises to the

Board's conclusion in Smith that since the section 245 applicant is

subject to all of the 212(a) exclusion provisions there is no valid reason

to deny him the benefits of section 212(c) on the "technical ground"

that he is not returning to the United States after a voluntary departure. The logical extension of such reasoning is to find all applicants for

admission entitled to apply for the benefits of section 212(c) relief.

Section 245 applicants are presumably not lawful permanent residents

—they would have no need to apply for adjustment of status if they

were permanent residents. Since they are not permanent residents,

they cannot be found to be assimilated to the status of a returning

resident alien who seeks relief under section 212(c) for the purpose of

returning to his lawful unrelinquished 7-years continuous domicile in

the United States I would, therefore, overrule Matter of Smith, supra,

and deny the motion to reopen on the ground that an applicant for

adjustment of status under section 245 is not eligible for the benefits of

section 212(c).

DISSENTING OPINION:

Irving A. Appleman, Board Member

I respectfully dissent.

I cannot accept the majority conclusions (a) that the Ninth Circuit

precedents bar any possibility of a section 212(c) waiver in conjunction

with an adjustment of status under section 245 since the respondent is

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a narcotic offender and (b) that the prior holding in Bowe v. INS, 597

F.2d 1158 (S Cir. 1979), has created an estoppel by judgment to granting the present motion.

In Matter of Arias-Uribe,13 I&N Dec. 696 (BIA 1971), this Board held

that an alien convicted of a narcotics offense after entry and therefore

deportable under section 241(a)(11), was statutorily ineligible for a

section 212(c) waiver, inasmuch as he was not an alien returning to the

United States to resume a lawful domicile of 7 years after a temporary

and voluntary absence subsequent to his conviction. We distinguished

such a case from other cases in which the relief had been granted (1)

nuns pro tmee to cure a ground of deportability originating in inadmissibility at the time of a previous entry, when the alien was eligible for

the relief, Natter of G— A—, 7 l&N Dec. 274 (BIA 1956), or, (2) to an

applicant for adjustment of status under section 245(a), 8 U.S.C.

1255(a), who, in order to meet the requirement of section 245(a)(2) that

he is "eligible to receive an immigrant visa and is admissible ...," had

coupled his adjustment application with a request for a waiver under

section 2124(c), of a ground of inadmissibility which would otherwise

have barred the adjustment. Matter of Smith, 11 I&N Dec. 825 (DIA

1965).

In both (1) and (2), notwithstanding the application was made

during a deportation proceeding, relief under section 212(c) derived

authority from the words "may be admitted" in that section, and the

waivers were of specific grounds of excludability specified in that

section. See Concurring Opinion, Matter of Silva, 16 I&N Dec. 26, 30

OA 1976)- It is the second type of request which is before us today,

namely, for a waiver under section 212(c) in conjunction with an

application for adjustment of status.

In noting our authority to rule on such an application, in Matter of

Smith, supra, we assimilated an applicant for section 245 adjustment

of status (the Immigration and Nationality Act replacement for the

cumbersome and expensive "preexamination" procedure which had

evolved under prior legislation) to an applicant seeking to enter the

United States with an immigration visa.

The Ninth Circuit has repeatedly held that an alien seeking adjustment under section 245 is assimilated to an alien seeking to enter the

United States for permanent residence. Thus, in Amarante v.

Rosenberg, 326 F.2d 58 (9 Cir. 1964), the Court held that the Attorney

General's action in adjusting an alien's status to that of a permanent

resident "is equivalent to the issuance of a visa by a United States

Consul outside the United States." Id. at 61. Final. authority "rests

with the consular office (or Attorney General under section 245) who

grants the alien's application and actually accords the nonquota

status." Id at 62 (emphasis supplied). See also Campos v. INS, 402 F.2(1

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758 (9 Cir. 1968); Honig, v. INS, 538 F.2d 1389, 1390 (9 Cir. 1976). Cf.

Khadjenouri v. INS, 460 F.2d 461 (9 Cir. 1972).

It is against this background that Arias-Uribe v. INS, 466 F.2d 1198

(9 Cir. 1972), and succeeding cases of the Ninth Circuit, should be read.

Rather than reflecting inconsistency, the Ninth Circuit decisions have

uniformly required compliance with the express terms of section

212(c). The relief cannot be considered unless it involves a waiver of a

specified ground of excludability which would prevent an otherwise

lawful permanent resident from resuming a lawful domicile here. In

Arias-gibe v. INS, the Court pointed out that the alien's deportation

was not sought because he was excludable at the time he last entered

the United States, but because he was convicted of a narcotics offense

after entering the United States, and hence he did not come within the

language of 212(e).

Significantly, in a footnote, the Court said as to the Board's holding

in Matter of Smith, supra, respecting the availability of section 212(c)

in conjunction with an adjustment of status, "We need not decide

whether this interpretation is correct since adjustment of status is

unavailable to natives of any country in the Western Hemisphere."'

Arias-Uribe v. INS, at 1199, n.3.

So far as known, to date the Ninth Circuit has not passed on the

availability of section 212(c) relief in conjunction with an application

for adjustment of status. The respondent has moved to reopen his

deportation proceedings. He has alleged that he married a United

States citizen subsequent to his hearing and that she has filed a visa

petition for him. He has completed his period of probation. He has filed

an application under section 245 and claims to be eligible for that relief

(see Matter of Garcia, 16 I&N Dec. 653 (BIA 1978)). He now requests

consideration of a waiver under section 212(c), of inadmissibility under

section 212(a)(23) because of his narcotics conviction, in conjunction

with his application for adjustment. His application and these facts

were not before the Court when it decided Baum v. INS, supra; neither

was the issue of availability of section 212(c) relief in conjunction with

section 245. I know of no holding of that circuit which dictates an

adverse ruling on the point. Since there was no adjudication in Bowe v.

INS, of the question now raised before us, and the issue was not

previously litigated, I do not regard the decision of the court as an

estoppel by judgment on this point of law. In re Yarn Processing

Patent Validity Litigation, 498 F.2d 271, 278 (5 Cir. 1974), cert. denied,

419 U.S. 1057 (1974).

I am equally unable to go along with the majority's additional basis

' This provision has since been deleted. Section 245(c) as amended by section 6, Act of

October 20, 1976, Pub. L. 94-571, 90 Stat. 2706

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for denial, that relief is barred merely because Bowe is deportable

under section 241(a)(11). In Arias-Uribe v. INS, supra, the Court accepted the reasoning of the Board, that the relief was unavailable

because deportability arose from circumstances occurring after the

alien'sr entry, whereas section 212(c), by its literal language, pertains

only to inadmissibility at the time an entry either occurred, or will

occur. The Court's further comments in Arias-Uribe respecting deportability arising from a narcotics offense, are dicta, which only emphasize the distinction between an exclusion ground and a deportation

ground, in the exercise of this particular relief. The reference to drug

offenders in succeeding decisions which rely on Arias-Uribe would

seem to be largely a fortuitous circumstance, stemming from the

nature of the deportation charge in each of those cases. See Dunn v.

INS, 499 F.2d 856 (9 Cir. 1974), cert. denied., 419 U.S. 1106 (1975);

Nicholas v. INS, 590 F.2d :802 (9 Cir. 1979); Bowe v. INS, supra. There is

no legal basis for distinguishing drug offenders from other deportable

aliens in these circumstances.

That the result would have been the same for any deportation charge

not tied to an entry, gains some support from Castillo Felix v. INS, 601

F.2d 459 (9 Cir. 1979), a recent Ninth Circuit decision where the

deportation charge was not drug related, but in which the Court

rejected the relief. In Castillo-Felix also, the Court, in noting its

apparent conflict with the Second Circuit decision in Francis v. INS,

532 F.2d 268 (2 Cir. 1976), stated, "This circuit, however, continues to

recognize the actual departure requirement," citing Arias-Uribe, supra

—language which one may interpret as meaning the relief is available

only in connection with reentry after a departure (real or assimilated),

and then only for waiver of a ground of excludability specified in

F.2d No. 78section 212(e). See also Mondragan v. 17,chert,

3051 (9 Cir. January 25, 1980). I therefore differ with so much of the

majority decision as would find the respondent automatically barred

from the relief merely because he is a drug offender_ There is a

substantial difference between a waiver of a ground of deportation

under section 241(a)(11), which was rejected in Bowe v. INS, supra,

and a waiver of an exclusion ground under section 212(a)(23), which he

now seek and which is included in the specified grounds of section

212(c).

Clearly the Ninth Circuit is unwilling to accept section 212(c) as an

alternate deportation relief standing by itself. Its rejection of Francis,

supra, makes this clear once again. It has consistently held to this

position. Mondragan v. Ilchert, supra, cited by the majority, is but

another example of this. Mandl-ago-A was charged under section

241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), with having entered without

inspection. There is no provision in section 212(c), as a matter of law,

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for a waiver of such a charge. It is not a specified ground of exclusion,

nor is there even an exclusion ground comparable to the deportation

ground. Matter of Granados, 16 I&N Dec. 726 (BIA 1979). However, it

does not follow that section 212(c) relief, when it concerns a waiver of a

ground of excludability that is within the express language of the

section, and is coupled with the safeguards written into the adjustment procedure by the statute and implementing regulations, would

not he acceptable to that Court. In any event, I am unwilling to reach

that conclusion in the present state of the law and am unwilling to

accept what I regard as an oversimplistic analysis of Bowe v. INS,

supra, and related cases.

I would grant the motion and direct reopening of the proceedings.

BEFORE THE BOARD

December 17, 1980

BY:

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

The Immigration and Naturalization Service has filed a motion for

reconsideration of our decision, dated August 22, 1980, in the abovenamed case. In our prior decision, we denied the respondent's unopposed motion to reopen his deportation proceedings to enable him to

apply for a waiver under section 212(c) of the. Immigration and Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of status

application under section 245 of the Act, 8 U.S.C. 1255. Matter of owe,

Interim Decision 2819 (BIA 1980). The motion to reconsider will be

denied.

In our decision of August 28, 1980, we found that, under Ninth

Circuit precedent as set forth in Bowe v. INS, 597 F.2d 1158 (9 Cir.

1979) and Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979), we were precluded

from finding the respondent eligible for 212(c) relief because he is

deportable under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).

Both counsel for the respondent, and for the Service, had argued that

the Court's decisions in Bowe v. INS, supra, and Nicholas, supra, were

not supported by prior Ninth Circuit case law, were not consistent with

Service and Board positions regarding 212(c) relief,' and that those

' The Board in Matter of Silva,16 I&N Dec. 26 (BIA 1976), decided to follow the Second

Circuit's decision in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), in which it was held that

212(c) relief is available to a permanent resident alien who has the requisite lawful

unrelinquished domicile, including one convicted of a narcotics offense and deportable

under section 241(a)(11), regardless of whether or not that alien had departed from the

United States since his excludable act.

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precedents need not and should not be followed. The majority of this

Board disagreed. It was determined that the Ninth Circuit precedents

had to be followed in cases arising in that circuit, and that the adjustment of status application filed with the 212(c) application did not

enable us to ignore the Ninth Circuit holdings that "Relief under

section 212(c) has been held to be unavailable to an alien facing

deportation for conviction of a drug-related crime, pursuant to 8 U.S.C.

1251(a)(11)." Bowe v. INS, supra, at 1158; Nicholas, supra, at 808.

In its present motion to reconsider, the Service argues that this

Board is not bound by Ninth Circuit precedents in the section 212(c)

area. It now bolsters this argument by pointing out that, subsequent to

our decision in Matter of Bowe, supra, the Solicitor General on October

2, 1980, filed a brief with the Supreme Court in support of its petition

for a writ of certiorari in the case of Tapia-Acuna v. INS, No. 80-74,

U.S.L.W. 3165. The petition for writ of certiorari was filed with the

Supreme Court on July 17, 1980, but neither the petition, nor the

reason for it, was made known to this Board prior to our decision in

Matter of Bowe, supra. The brief urged the Court to remand the case to

the Ninth Circuit for reconsideration of that Court's prior decision

denying the alien 212(c) relief. The Government requested that the

Ninth Circuit be given the opportunity to reconsider its decision in

light of the present government position that 212(c) should be available to drug-offenders in deportation proceedings even in the Ninth

Circuit, and that the Ninth Circuit decisions holding the relief to be

unavailable to such aliens are incorrect.

Although the Solicitor General in his brief before the Supreme

Court specifically stated that it was the Government's position that

Bowe v. INS, supra and Nicholas, supra, "are erroneous and should be

overruled," and although there exists a clear conflict among the circuits regarding the availability of 212(c) relief, thus paving the way for

the Supreme Court to make a ruling on the merits of this issue, the

Solicitor General did not seek a decision on the merits of the issue.

Rather, he specifically sought a remand of the case to enable the Ninth

Circuit to reconsider in view of the present government position. As

the Ninth Circuit has for 4 years been aware of the Francis decision,

supra, and of this Board's decision to apply Francis everywhere except

in the Ninth Circuit, but has in dictum expressed its disapproval of

those decisions,' it is interesting that the Solicitor General sought the

opportunity to ask the Court of Appeals to change its prior decisions,

instead of seeking to litigate the basic question before the Supreme

Court, and obtain a definitive decision there. In any event, the Supreme

=See Mondragan v. Ikhert,

F.2d

, No. 78-3051 (9 Cir. January 25, 1980);

Castillo-Felix v. INS, 601 F.2d 459, n.6 at 462 (9 Cir. 1979).

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Court on November 3, 1980, granted the writ of certiorari, and granted

the Government's request that the ease be remanded to the Ninth

Circuit "for further consideration in light of the position presently

asserted by the Solicitor General in his brief filed October 3, 1980."

Tapia-Acuna v. INS, 101 S. Ct. 344 (1980).

Thus, the very issue presently before us in this case, the availability

of 212(c) relief in the Ninth Circuit to aliens deportable under section

241(a)(11), is presently pending before the Ninth Circuit Court of

Appeals, by order of the United States Supreme Court. Under these

circumstances, it would be presumptuous for this Board to now reconsider this issue, as it has been specifically reserved to the Ninth Circuit

to reconsider it. The only appropriate course is to deny this motion and

await the outcome of the Tapia Acuna v. INS remand, supra, or of

another Ninth Circuit decision, in this area, one which we hope would

address all of the problems raised in our prior decision in this case.

In view of our determination that the Supreme Court's disposition of

the Tapia-Acuna v. INS case, supra, makes it inappropriate for us to

grant the Service's motion to reconsider, we need not address the other

arguments made by the Service in its motion.

ORDER: The motion to reconsider is denied.

-

BEFORE THE BOARD

April 23, 1981

BY:

Milbollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In our decision of August 28, 1980, we denied the respondent's

unopposed motion to reopen his deportation proceedings to enable him

to apply for a waiver under section 212(c) of the Immigration and

Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of

status application under section 245 of the Act, 8 U.S.C. 1255. Subsequently, the Immigration and Naturalization Service filed a motion for

reconsideration of that decision. In our decision dated December 17,

1980, we concluded that the United States Supreme Court's decision in

Tapia-Acuna v. INS,101 S. Ct. 344 (1980), made it inappropriate for us

to grant the Service's motion. Accordingly, the motion to reconsider

was denied.

On February 20, 1981, in accordance with the request of the Acting

Commissioner of the Service, our decision of December 17, 1980 was

certified to the Attorney General fur review pursuant to 8 C.F.R.

3.1(h)(1)(iii). The request for certification was withdrawn by the Service in a memorandum dated March 25, 1981, and the record of proceed-

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ings was returned to us for appropriate action.

In light of the above chronology of events and the decision of the

United States Court of Appeals for the Ninth Circuit in Tapia-Acuna v.

INS, 640 F.2d 223 (9 Cir. 1981), we shall reopen these proceedings on

our own motion and remand the record to enable the respondent tc

fully present his application for relief under section 212(c) of the Act,

predicated upon the present facts, before an immigration judge.

ORDERS The proceedings are reopened and the record is remanded to the immigration judge for further proceedings consistent

with the foregoing opinion.

502