GARCIA
(2) A grant of nunc pro tunc permission to reapply for admission is not available to a respondent who, in spite of such a grant, would remain deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act,
(3) An alien who returned to the United States following deportation with a visa, but without obtaining advance permission to reapply, is not eligible to apply for nunc pro tunc permission to reapply for admission in conjunction with an application for a waiver of inadmissibility under section 212(c) of the Act,
HOLMES, Board Member:
In a decision dated May 2, 1994, an Immigration Judge found the respondent deportable under sections 241(a)(1)(A), (2)(A)(iii), and (2)(B)(i) of the Immigration and Nationality Act,
I. FACTUAL BACKGROUND
The principal facts of the case are not in dispute. The respondent is a native and citizen of Mexico who initially entered the United States without inspection in November 1975. That same year, he was granted voluntary departure by the Immigration and Naturalization Service and returned to Mexico. He reentered the United States once again without inspection in January 1976. He was arrested by the Service in June 1977 and was granted a period of voluntary departure through September 1977. The respondent married a United States citizen in June 1977. On the basis of that marriage, an immediate relative visa petition was approved on his behalf in July 1977. As a result, the Service granted the respondent a series of 6-month extensions of voluntary departure over the next 4 years. During this period, two children were born of the respondent‘s marriage. The respondent‘s last extension of voluntary departure expired on August 22, 1981.
In October 1981, the respondent was placed in deportation proceedings because he had never departed the United States voluntarily to regularize his status. At his deportation hearing, the respondent admitted deportability as charged and was granted the privilege of voluntarily departing from the United States until September 25, 1982, with an alternative order of deportation to Mexico. The respondent again failed to depart the United States by the specified deadline. He was sent a notice to report for deportation by certified mail at his last known address on November 2, 1982. He was ordered to report for deportation on November 30, 1982. The respondent failed to claim the notice of deportation from the post office and the letter was returned to the Service in December 1982.
The respondent thereafter left the United States and returned to Mexico. As a result of this departure, he was considered to have been “deported in pursuance of law” under section 101(g) of the Act,
II. CURRENT DEPORTATION PROCEEDINGS AND ISSUE
The respondent‘s status in this country would likely have remained unquestioned had he not brought himself to the Service‘s attention in 1994 by committing a crime. However, on April 7, 1994, he was convicted in the Superior Court for the State of Alaska at Kodiak, for the offense of misconduct involving a controlled substance (third degree), in violation of Alaska Statutes
The Service initially charged the respondent with deportability as an alien convicted of an aggravated felony and a controlled substance violation. On October 13, 1994, however, the Service lodged additional charges alleging that the respondent was deportable as one excludable at entry, both because he had not received advance permission to reapply for reentry and because he did not possess a valid entry document. See sections 241(a)(1)(A), 212(a)(6)(B), (7)(A)(i)(I), (7)(B)(i)(II) of the Act. The respondent was found deportable on these charges, and his deportability is not at issue on appeal.
By way of relief from deportation, the respondent sought nunc pro tunc, or retroactive, permission to reapply for admission to the United States and the opportunity to apply for a waiver of inadmissibility under section 212(c) of the Act. Opposing this request, the Service contended that nunc pro tunc permission to reapply for admission was not available to the respondent since a grant of such permission would not completely dispose of his case. Hence, the Service argued, without such a grant, the respondent never acquired the status of lawful permanent resident in 1983. Thus, he could not qualify for relief under section 212(c) of the Act. The Service asked the Immigration Judge to pretermit the respondent‘s application for section 212(c) relief.
The issue before the Immigration Judge was whether the respondent could concurrently request nunc pro tunc permission to reapply for admission after deportation and a waiver under section 212(c) of the Act. Confronted with this exact issue, the Board had ruled in an earlier unpublished decision that neither an Immigration Judge nor this Board had the authority to grant a respondent nunc pro tunc permission to reapply for admission to enable him to apply for a waiver under section 212(c).2 Citing this previous unpublished Board decision, the Immigration Judge found the respondent ineligible for the relief. This appeal followed.
In this previous case, the Immigration Judge had relied on the Board‘s holding in Matter of Roman, 19 I&N Dec. 855 (BIA 1988), and concluded that he did not have the authority to grant the respondent nunc pro tunc permission to reapply for admission since the respondent remained deportable on the basis of his drug conviction. Consequently, the Immigration Judge had found the respondent statutorily ineligible for the waiver provided for in section 212(c) of the Act because he could not establish that his entry as a permanent resident was lawful. See Monet v. INS, 791 F.2d 752 (9th Cir. 1986); Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983), cert. denied, 467 U.S. 1219 (1984); see also Fedorenko v. United States, 449 U.S. 490 (1981). The respondent in that case appealed, arguing that grants of nunc pro tunc permission to reapply and of relief under section 212(c) could be made concurrently, thus rendering the respondent eligible for both forms of relief and effecting a complete resolution of the case. However, the Board affirmed the decision of the Immigration Judge. The same legal issues are raised in the present case, albeit under somewhat different factual circumstances.3
IV. NUNC PRO TUNC REQUESTS TO REAPPLY FOR ADMISSION
We note initially that there is no provision in the immigration laws that expressly authorizes nunc pro tunc permission to reapply for admission to cure an alien‘s failure to obtain such permission prior to reentry after deportation. However, even prior to the enactment of the Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163, there had long been an administrative practice of granting such relief “in a few well-defined instances.” Matter of S-N-, 6 I&N Dec. 73, 76 (BIA, A.G. 1954). And, in 1954, the Attorney General ruled that there was no reason to reverse this practice following the enactment of the 1952 Act. Id.
Thus, Immigration Judges and this Board have long considered such requests for “relief.” However, the instances in which such relief could be granted have been limited to those in which the grant would effect a complete disposition of the case, i.e., where “the only ground of deportability or inadmissability would thereby be eliminated” or where the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissibility. Matter of Ng, 17 I&N Dec. 63, 64 (BIA 1979); see also Matter of Roman, supra; Matter of Ducret, 15 I&N Dec. 620 (BIA 1976); Matter of Vrettakos, 14 I&N Dec. 593 (BIA 1973; 1974), and cases cited therein;
It is the respondent‘s position that a grant of nunc pro tunc permission to reapply for admission after deportation is available to him since such a grant would eliminate all the grounds for which he was excludable at the time of his 1983 entry.
It is true that a grant of nunc pro tunc permission to reapply for admission would cure the respondent‘s “inadmissibility” at the time of entry and, hence, his deportability as an excludable alien. However, the authority of this Board and the Immigration Judges to grant such permission in deportation or exclusion proceedings, which in essence has been gleaned from the Act, is limited. As noted above, it has been extended only to instances where all established grounds of deportability or inadmissibility are eliminated. A grant of nunc pro tunc permission to reapply for admission in this case would not effect a complete disposition of the case because the respondent, in spite of such a grant, would remain deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Act. We believe our holdings in Matter of Roman, supra; Matter of Ng-, supra; Matter of Ducret, supra; and Matter of Vrettakos, supra, are controlling and require the denial of the respondent‘s request. See Perez-Rodriguez v. INS, 3 F.3d 1074 (7th Cir. 1993) (upholding this Board‘s interpretation of its authority to entertain applications for retroactive permission to enter the United States.)4
V. CONCURRENT REQUESTS FOR RELIEF
In so concluding, we agree with the respondent that in other factual circumstances, aliens can apply for multiple forms of relief concurrently. The most recent example of this is Matter of Sosa-Hernandez, 20 I&N Dec. 758 (BIA 1993), a case upon which the respondent has relied, where an alien was permitted to apply for a waiver under former section 241(f) of the Act,
The respondent‘s reliance on Matter of Millard, 11 I&N Dec. 175 (BIA 1965), also is not controlling, as the applicant therein qualified for the two statutory waivers that she sought under former sections 212(g) and (h) of the Act,
The respondent nevertheless maintains that he is eligible for nunc pro tunc permission to reapply for admission and for section 212(c) relief since, once nunc pro tunc permission is granted, the remaining charges arising from his drug conviction could be resolved by a grant of section 212(c) relief. A similar argument, however, was raised and rejected in Matter of Roman, supra.
In fact, the respondent here is attempting to bootstrap his eligibility for relief much as did the alien in Matter of Roman, supra. He is not eligible for relief under section 212(c) unless his entry in 1983 was lawful. That entry could only be considered lawful if he is granted nunc pro tunc permission to reenter. However, this latter form of “relief” is not specifically authorized by statute. It exists as a longstanding administrative practice permitted only in limited circumstances not present here. While it may be tempting to incrementally extend administrative authority, particularly as each small step appears a minor expansion from the last (but ultimately can lead to a finding that no rational basis exists not to provide eligibility for relief to all), we are not willing to do so here, where the remedy in question has no specific statutory underpinning.
In a related argument, the respondent complains that by denying him the opportunity to apply for section 212(c) relief, we are in effect violating his rights to due process and equal protection under the law. The respondent submits that he is being treated differently from those aliens in, e.g., Matter of Sosa-Hernandez, supra; Matter of Gabryelsky, supra; and Matter of Millard, supra, who were able to apply for concurrent remedies in the course of their hearings. However, this argument presupposes that the respondent and these other aliens are similarly situated. For the reasons we have discussed above, such is not the case. Moreover, if the narrowly applied, administratively created practice of nunc pro tunc permission to reapply for admission after deportation were found to result in equal protection violations, then at least some consideration would have to be given to ending this practice rather than extending it further.
The respondent also urges that he should be treated like other previously deported, longtime residents facing deportation on drug-related charges, who sought and were accorded advance permission to reapply prior to being convicted of “a deportable conviction.” He argues that such aliens are allowed to apply for section 212(c) relief and that there “is no legitimate interest or rational basis in distinguishing between longtime residents of the United States based on whether they apply for nunc pro tunc permission prior, or subsequent, to another deportable ground arising.” However, the fact that an alien has committed a crime and the timing of such a crime can be determinative under the Act. See, e.g., section 241(a)(2)(A)(i) of the Act. The respondent‘s argument in this regard really is not materially different from the assertion that, if he had applied for and received advance permission to reenter prior to his admission in 1983, he would not be in his present predicament.
The respondent also states that the Service kept him ignorant of his “excludability” for 11 years, and that had he known that his status as a lawful permanent resident was in question he would have requested nunc pro tunc permission to reapply for admission long ago. It is not within the jurisdiction of this Board, however, to review the wisdom of the Service‘s decision whether or when to issue an Order to Show Cause. See Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir. 1977); Matter of Quintero, 18 I&N Dec. 348 (BIA 1982); Matter of Geronimo, 13 I&N Dec. 680 (BIA 1971). In any event, there is no evidence that the Service was actually aware of the respondent‘s deportability before his conviction brought him to the Service‘s attention or that the Service intentionally elected to “withhold” this information from him. The Service certainly was not aware that the respondent was going to commit a crime, which is the reason he is in his present difficulty. The respondent cannot fairly lay responsibility for this at the feet of the Service.
The respondent finally argues that fundamental fairness dictates that his status as a lawful permanent resident should not be vulnerable to challenge indefinitely. However, there is no “statute of limitations” in deportation proceedings. Biggs v. INS, 55 F.3d 1398, 1401 (9th Cir. 1995); see also Monet v. INS, supra; Oloteo v. INS, 643 F.2d 679 (9th Cir. 1981); Ubiera v. Bell, 463 F. Supp. 181, 185 (S.D.N.Y. 1978); Matter of S-, 9 I&N Dec. 548 (BIA 1961; A.G. 1962).
VII. INELIGIBILITY FOR RELIEF UNDER SECTION 212(c)
Eligibility for relief under section 212(c) of the Act requires the respondent to have been lawfully admitted for permanent residence. See section 212(c) of the Act; Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979); Matter of T-, 6 I&N Dec. 136 (BIA, A.G. 1954). Had the respondent obtained advance permission to reapply for admission, he would presently be eligible to apply for section 212(c) relief. However, he did not do so and the immigrant visa that enabled him to enter the United States in 1983 was not properly issued as the result of this failure. See sections 101(a)(16), 212(a)(17) of the Act,
ORDER: The appeal is dismissed.
DISSENTING OPINION: John W. Guendelsberger, Board Member, in which Paul W. Schmidt, Chairman, joins
I respectfully dissent.
The majority opinion precludes the consideration of nunc pro tunc1 (retroactive) permission to reapply for admission after deportation in conjunction with a request for relief under section 212(c) of the Immigration and Nationality Act,
A retroactive grant of permission to reapply for admission after deportation combined with a section 212(c) waiver would completely dispose of this case. Allowing such concurrent applications is the simplest, most practical,
I. AUTHORITY TO GRANT RETROACTIVE RELIEF
In the interests of justice, this Board has long granted nunc pro tunc permission to reapply for admission to cure an alien‘s failure to have requested and received permission to reapply for admission after having been deported. Immigration Judge and Board authority to grant such nunc pro tunc relief is derived from the language of
II. PRIOR BOARD PRECEDENTS CONFIRM THE AUTHORITY TO GRANT NUNC PRO TUNC PERMISSION TO REAPPLY IN A RANGE OF SITUATIONS
In Matter of S-N-, 6 I&N Dec. 73 (BIA, A.G. 1954), the Board found (and the Attorney General agreed) that Immigration Judges and the Board have the authority to rule on an application for nunc pro tunc permission to reapply for admission to remove the ground of inadmissibility caused by inadvertent failure to obtain such permission in advance (former section 212(a)(17) of the Act,
The only ground of exclusion at issue in Matter of S-N- was section 212(a)(17). In a number of subsequent decisions, however, nunc pro tunc permission to reapply for admission has been afforded in cases involving additional grounds for exclusion or deportation in combination with various forms of discretionary relief. For example, the Board, in granting retroactive permission to reapply for admission, has also found that such permission precluded the derivative charge under former section 212(a)(20) of the Act,
In fact, when faced with the same issue as in the instant case, the Board has granted nunc pro tunc permission to reapply for admission after deportation in conjunction with section 212(c) relief. Matter of Farinas, 12 I&N Dec. 467 (BIA 1967) (nunc pro tunc permission to reapply combined with waiver of passport, immigrant visa, reentry permit, or other documentation
In Matter of Vrettakos, 14 I&N Dec. 593, 599 (BIA 1973, 1974), this Board explained that it would limit nunc pro tunc permission to reapply for admission to situations in which such a step would be “appropriate and necessary for the disposition of the case.” Vrettakos, who had entered as a crewman, sought nunc pro tunc permission to reapply for admission combined with the discretionary relief of adjustment of status under section 245 by virtue of his marriage to a United States citizen. Because of his status as an alien crewman, however, Vrettakos was ineligible for adjustment of status; nor was any other form of discretionary relief available. The Board concluded that “[h]ence, the grant of nunc pro tunc permission [to reapply for admission] . . . would not in any way affect his deportability, render him nondeportable, or permit termination of the proceedings by allowing him to avail himself of discretionary relief from deportation.” Id. at 597-98 (second emphasis added).
The above-quoted language in Matter of Vrettakos, supra, suggests that consideration of nunc pro tunc permission to enter is “appropriate and necessary for complete disposition” of a case whenever that step would make available discretionary relief from deportation which could dispose of all grounds for exclusion or deportation. In the instant case, nunc pro tunc permission to reapply for admission would permit termination of the proceedings by allowing the respondent to avail himself of section 212(c) discretionary relief. Under the rationale of the cases discussed above, a grant of nunc pro tunc relief in the instant case is “appropriate and necessary” to completely dispose of the case.
III. THE MAJORITY HAS MISCONSTRUED MATTER OF VRETTAKOS
The majority focuses upon language in Matter of Vrettakos, supra, specifying two situations which fit the criteria for nunc pro tunc permission to reapply for admission and rules that these two examples are the only situations in which such permission may beconsidered.2 In light of the Board decisions cited above and the general rule articulated in Matter of Vrettakos, it is clear that these two examples were not meant to be the only situations in which nunc pro tunc permission could be considered.
Matter of Ducret, supra, was a case in which the only ground for deportation was section 212(a)(17). This decision did not involve the combination of nunc pro tunc relief with any other form of discretionary relief. Therefore, the reference to the two examples in Matter of Vrettakos, supra, was unnecessary to the decision.
Matter of Ng, supra, is completely distinguishable from the instant case. The applicant in that case faced exclusion, not for having violated the advance permission requirement of section 212(a)(17) of the Act, but for having entered without proper documents under then section 212(a)(20). The Immigration Judge found the alien deportable, but purported to grant the applicant advance permission to reapply for admission following deportation. The Board found that such an anticipatory grant of permission to reapply was beyond the authority of the Immigration Judge. Since the issue of exclusion under section 212(a)(17) was not before the Immigration Court, it could not be resolved until the applicant was deported and reapplied for admission. Nonetheless, in Matter of Ng the Board went on to repeat the two examples cited in Matter of Vrettakos, supra, as examples of situations in which nunc pro tunc relief could be granted.
IV. THE RESPONDENT DOES NOT SEEK TO “BOOTSTRAP”
In Matter of Roman, supra, the Board considered whether nunc pro tunc permission to reapply could be combined with discretionary relief under the waiver pursuant to the former section 241(f) of the Act,
On the other hand, the respondent in the instant case possessed valid entry documents and, but for the failure to apply for advance permission to enter, made a valid entry as a permanent resident. The grant of nunc pro tunc relief in the instant case would cure not only the failure to seek advance permission, but also any issue as to the validity of the entry documents stemming from such failure. No bootstrapping is required, as it was in Matter of Roman, supra, in regard to the question of valid entry documents. A grant of nunc pro tunc relief in the instant case would afford the respondent the status of a lawfully admitted permanent resident eligible for section 212(c) relief.
V. NUNC PRO TUNC CONSIDERATION IS CONSISTENT WITH RECENT BOARD PRECEDENTS
In contrast to the majority‘s narrow ruling on nunc pro tunc relief, I adopt the approach initially formulated over 2 decades ago which permits nunc pro tunc permission to reapply whenever that step would lead to the complete disposition of the case by “allowing the [respondent] to avail himself of discretionary relief from deportation.” Matter of Vrettakos, supra, at 598. Such an approach is consistent with the approach used in Matter of Sosa-Hernandez, 20 I&N Dec. 758 (BIA 1993); Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993); and Matter of Millard, 11 I&N Dec. 175 (BIA 1965). Each of these cases permits the combination of waiver applications in one proceeding. I see no reason to preclude combination of nunc pro tunc permission to reapply for admission with section 212(c) relief when such relief would lead to the complete disposition of the case.4
The primary difference between this respondent and the many other section 212(c) applicants whose applications we consider on the merits is that this respondent “self-deported” prior to appearing for his visa interview at the United States consulate and did not inform the consul of his self-deportation (assuming he was even aware that his departure was considered a “deportation“). I have difficulty concluding that this difference should preclude a full consideration of the merits of the respondent‘s section 212(c) application. Cf. Yeung v. INS, 61 F.3d 833 (11th Cir. 1995), modified, 72 F.3d 843 (11th Cir. 1996); Matter of Silva, 16 I&N Dec. 26 (BIA 1976) (cautioning that distinctions should be related to a legitimate governmental interest).
Only a very few applicants may be affected by this decision, but it will have a profound effect on those aliens. The respondent has resided in this country as a permanent resident since the 1983 entry and has United States citizen children. Nunc pro tunc relief in the instant case is certainly within the authority of the Board and “appropriate and necessary” to the just disposition of the case.
VI. CONCLUSION
For the foregoing reasons, I would consider the respondent‘s concurrent applications for permission to reapply after deportation and section 212(c) relief on the merits. Cf. Matter of Gabryelsky, supra. This action would completely dispose of the respondent‘s case. I therefore respectfully dissent from the majority‘s holding that consideration of these combined forms of relief is unavailable to this respondent.
DISSENTING OPINION: Lory D. Rosenberg, Board Member
I respectfully dissent.
I join fully with dissenting Board Member John W. Guendelsberger and Chairman Paul W. Schmidt. Our authority to grant nunc pro tunc relief is derived both from
I write separately only to articulate an additional point of dissent from the position taken by the majority. In addition to those points raised and discussed by dissenting Board Member Guendelsberger and Chairman Schmidt, my disagreement with the majority‘s reasoning and conclusion is twofold.
First, I believe that the majority has misconstrued our holding in Matter of Sosa-Hernandez, 20 I&N Dec. 758 (BIA 1993). Second, I conclude that the majority has departed from our holding in Matter of Sosa-Hernandez without explanation or reason.
In Matter of Sosa-Hernandez, supra, the Board found that a waiver of deportability under former section 241(f) of the Act,
The respondent in the case before us is “otherwise admissible,” but for reasons which were a direct result of his failing to obtain advance permission to reapply for admission before his lawful entry in 1983 as a permanent resident based upon his spouse‘s petition. This respondent departed and was considered to have been deported “in pursuance of law” under section 101(g) of the Act,
In Sosa-Hernandez, we concluded that “the immigration judge‘s grant of a section 241(f) waiver to the respondent retroactively validated the lawful permanent resident status” accorded him in 1974. Matter of Sosa-Hernandez, supra, at 763. In this case, a grant of permission to reapply would retroactively, or nunc pro tunc, validate the respondent‘s lawful permanent resident status.
I can see no meaningful difference, nor has the majority identified one, between the analysis in that case and a consistent analysis in this one. Nor has the majority offered any rationale distinguishing or explaining why a retroactive grant of section 241(f) relief to overcome a fraudulent entry should be treated as more justified or justifiable than a nunc pro tunc grant of permission to reapply for admission to overcome a prior deportation. In one case the retroactive waiver is “forgiving” the fraud surrounding the entry itself which was unlawful; in the other, the nunc pro tunc “permission” is removing the bar of a prior deportation from an entry which is otherwise lawful. Each situation is similarly distinguishable from that in Matter of Roman, supra, in which there existed two threshhold impediments to the lawfulness of the initial entry, and, therefore, permission to reapply and a section 241(f) waiver were required and had to be sought together solely to validate the respondent‘s status as a lawful permanent resident.
In my view, our decision in Matter of Sosa-Hernandez allows concurrent applications for relief from deportation in situations such as this one, in which the grant of an application relates back to render an earlier entry as a lawful permanent resident a lawful one, thus making a respondent having 7 years of lawful unrelinquished domicile eligible to apply for section 212(c) relief. Such reasoning has been committed to precedent and I would find it to be controlling here. Our determination in this case should be no different from that in Matter of Sosa-Hernandez. Consequently, I would conclude that a grant of nunc pro tunc permission to reapply is appropriate, necessary, and warranted.