In re Leoncio Crisoforo GONZALEZ-CAMARILLO, Respondent
File A41 388 122 - Seattle
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided June 19, 1997
Interim Decision #3320
SCHMIDT, Chairman
FOR RESPONDENT: Michael E. Meltzer, Esquire, Portland, Oregon
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG, Board Member, joined by VACCA and VILLAGELIU, Board Members.
SCHMIDT, Chairman:
The issue in this case is whether an alien who is deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act,
I. SUMMARY OF FACTS
The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on December 14, 1987. He was convicted on December 14, 1993, in the Superior Court for the State of California, County of Yolo, of the offense of transportation/sale of a controlled substance, cocaine, in violation of section 11352 of the California Health and Safety Code.
The Immigration and Naturalization Service initiated deportation proceedings, charging the respondent with deportability as an alien who has been convicted of a controlled substance violation and an aggravated felony. At a hearing before the Immigration Judge on May 21, 1996, the respondent admitted the allegations of the Order to Show Cause and Notice of Hearing (Form I-221) and conceded deportability. The respondent sought to apply for a section 212(c) waiver, both alone and in conjunction with an application for adjustment of status.
The Immigration Judge found that the respondent was not eligible for a waiver as a result of the amendments to section 212(c) by the AEDPA. He further concluded that adjustment of status was not available to eliminate the respondent‘s deportability.
II. ISSUES ON APPEAL
The respondent has presented two issues in his appeal. First, the respondent argues that he is eligible to apply for section 212(c) relief despite the amendments to that section by the AEDPA. In the alternative, the respondent asserts that even if the amendments to section 212(c) of the Act do apply, he is nevertheless eligible to seek adjustment of status in conjunction with the waiver.
III. THE AEDPA AMENDMENT TO SECTION 212(c)
The Antiterrorism and Effective Death Penalty Act of 1996 was enacted on April 24, 1996. Prior to that date, section 212(c) of the Act provided as follows:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) (other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b). The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
Section 440(d) of the AEDPA amended the last sentence of section 212(c) of the Act. Congress subsequently made a technical correction to section 440(d) of the AEDPA in section 306(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-612 (enacted Sept. 30, 1996). The last sentence of section 212(c) of the Act currently provides as follows:
This subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i). (Emphasis added.)
IV. SECTION 212(c) ELIGIBILITY
Prior to the Immigration Judge‘s decision, we had considered the question whether the AEDPA amendments to section 212(c) were retroactive in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996). In that decision, we determined that aliens who were deportable by reason of having committed any of the criminal offenses described in the amended statute were barred from eligibility for relief if their applications were filed after April 24, 1996. Consequently, those aliens whose applications were pending on that date remained eligible for relief.
However, our decision was certified to the Attorney General for review pursuant to
At the time the Immigration Judge rendered his decision on August 5, 1996, the Board‘s decision had been certified for review by the Attorney General. Although the Immigration Judge questioned the validity of the Board‘s order in Matter of Soriano, supra, following certification, he nevertheless applied the ruling of the Board in that case. However, he found that the respondent‘s application was not properly filed until April 25, 1996. The Immigration Judge therefore concluded that because the respondent‘s waiver application was not pending on April 24, 1996, he was barred from establishing eligibility for section 212(c) relief by the AEDPA amendments.
On appeal the respondent argues that the amendments of section 440(d) of the AEDPA should not be applied retroactively to prohibit him from applying for section 212(c) relief. However, that question has been determined by the Attorney General in Soriano. Therefore, we find that section 440(d) of the AEDPA applies to the respondent‘s application for section 212(c) relief. Inasmuch as the respondent is an alien who is deportable by reason of having committed [a] criminal offense covered in section[s] 241(a)(2)(A)(iii) [and] (B) of the Act, we find that section 212(c) of the Act is not available to
V. SECTION 212(c) IN CONJUNCTION WITH ADJUSTMENT OF STATUS
The respondent also argues that he is still eligible to apply for a section 212(c) waiver in conjunction with an application for adjustment of status. He contends that the AEDPA amendments apply only to deportable aliens who are seeking to waive grounds of deportability, and that aliens in exclusion proceedings are not barred from section 212(c) relief.
The respondent further argues that applicants for adjustment of status, who are assimilated to persons seeking admission at the border or through consular processing, need a waiver only to remove grounds of inadmissibility. He therefore asserts that an alien in deportation proceedings can still apply for a section 212(c) waiver for the limited purpose of removing the exclusion grounds that render him inadmissible (as well as deportable) to establish eligibility for adjustment of status. Finally, the respondent contends that it is a violation of equal protection to deny a waiver to applicants for adjustment of status in deportation proceedings while similarly situated criminal aliens seeking entry in exclusion proceedings, in consular processing, or through administrative adjustment proceedings before the Service are permitted to apply.
In Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997), we decided that section 212(c) relief is available in exclusion proceedings to aliens who have committed a criminal offense described in section 440(d) of the AEDPA. We construed the language of the statute literally, finding that the words, who is deportable, applied only to aliens in deportation proceedings. We therefore concluded that the bar to eligibility for a waiver set forth in the AEDPA amendments was not applicable to aliens in exclusion proceedings. Nevertheless, we reject the respondent‘s assertion that section 212(c) relief is available to waive exclusion grounds in deportation proceedings for purposes of establishing eligibility for adjustment of status.
As we emphasized in Matter of Fuentes-Campos, supra, the language of the AEDPA amendments is unambiguous. It applies to any alien who is deportable by reason of having committed any of the specified criminal offenses. The statute clearly bars all such deportable aliens from applying for section 212(c) relief in deportation proceedings.
Although we have stated that applicants for adjustment of status in deportation proceedings are assimilated to the position of aliens seeking entry, they are nevertheless deportable aliens. See Matter of Connelly, 19 I&N Dec. 156, 159 (BIA 1984). Congress gave no indication that criminal aliens seeking a waiver in order to apply for adjustment of status in deportation proceedings were exempt from the AEDPA‘s section 440(d) bar. The
Our prior precedent decisions do not require a different result. In Matter of Smith, 11 I&N Dec. 325, 327 (BIA 1965), we held that an alien in deportation proceedings could apply for section 212(c) relief in conjunction with an application for adjustment of status, noting that the statute in effect at that time did not preclude such a procedure. See also Matter of S-, 6 I&N Dec. 392 (BIA 1954; A.G. 1955) (finding that nothing in the language of section 212(c) or its legislative history indicated that Congress disapproved of the prior administrative practice of granting a waiver on a nunc pro tunc basis). However, the statute we now construe demands a contrary conclusion.
In enacting section 440(d) of the AEDPA, Congress clearly intended to restrict the availability of section 212(c) relief by prohibiting the specified deportable criminal aliens from applying for a waiver in deportation proceedings. The legislative history of the AEDPA indicates that the purpose of section 440 was to enhance[] the ability of the United States to deport criminal aliens. See H.R. Conf. Rep. No. 518, 104th Cong., 2d Sess. (1996), reprinted in 1996 U.S.C.C.A.N. 924, 952. In light of this statement of congressional intent, it cannot be said that the statute permits us to continue to apply our prior case law to deportable aliens within the scope of section 440(d) in disregard of its unambiguous mandate.
We also find no merit to the respondent‘s contention that permitting similarly situated aliens (i.e., aliens convicted of the same offense) to apply for section 212(c) relief in exclusion proceedings or in consular processing, but not in deportation proceedings in conjunction with adjustment of status, would result in disparate treatment in violation of the Equal Protection Clause of the Constitution. The groups at issue here are not, in fact, equally situated, as they were found to be in Francis v. INS, 532 F.2d 268 (2d Cir. 1976).
Prior to Francis, the Board had permitted permanent resident aliens to apply for a section 212(c) waiver in deportation proceedings without an adjustment application only if they had departed from the United States after becoming subject to deportation and were therefore inadmissible at the time of their last entry. See Matter of Silva, 16 I&N Dec. 26, 28 (BIA 1976); Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971), aff‘d, 466 F.2d 1198 (9th Cir. 1972). The court concluded that this differential treatment of deportable aliens in deportation proceedings who had departed and similarly situated deportable aliens who had not was not rationally related to any legitimate purpose of the statute. This distinction, which had been created administratively by the Board‘s interpretation of section 212(c), was therefore found to be a violation of equal protection.
The distinction here, however, between deportable aliens and aliens in exclusion proceedings or in consular processing, is one created by the statute
Consequently, we find that the respondent, who is deportable on the basis of his criminal conduct, is ineligible to apply for section 212(c) relief in order to establish eligibility for adjustment of status in these deportation proceedings.
VI. CONCLUSION
The respondent in this case is deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Act. Inasmuch as the respondent is an alien who is deportable by reason of having committed an offense described in these sections, he is barred from applying for a waiver under section 212(c) of the Act by virtue of the amendments of section 440(d) of the AEDPA. This bar applies regardless of whether the waiver application is requested alone or in conjunction with an application for adjustment of status. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: The appeal is dismissed.
In re Leoncio Crisoforo GONZALEZ-CAMARILLO, Respondent
File A41 388 122 - Seattle
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided June 19, 1997
Interim Decision #3320
I respectfully concur in part and dissent in part.
The salient issue in this case involves the respondent‘s admissibility to the United States as a lawful permanent resident. Although he requires a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act,
The respondent has lawfully resided in the United States for nearly 10 years. He is married to a lawful permanent resident who is in the process of seeking to be naturalized, and he has two children, ages 10 and 6, who are
In dismissing his appeal, the majority violates the plain statutory language of section 440(d) of the AEDPA, which we just recently construed, and contravenes our recent unanimous holding in Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). In addition, the majority fails to meaningfully address the respondent‘s arguments and ignores nearly a century of law, including the authority of some 50 years of our own precedent, and currently applicable regulations. See
I. SUMMARY: SECTION 440(d) AND MATTER OF FUENTES-CAMPOS ALLOW A SECTION 212(c) WAIVER WITH AN ADJUSTMENT OF STATUS APPLICATION
For purposes of the appeal before us, it is important to note that, in relation to his eligibility to adjust status, the respondent does not contend that he is entitled to obtain an outright waiver of the ground on which he is charged with being deportable.1 Indeed, he no longer is eligible for such a waiver. See Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997); see also Matter of Fuentes-Campos, supra. The bottom line, however, is that the respondent is eligible for adjustment of status under section 245 of the Act,
- The plain and unambiguous language of section 440(d) of the AEDPA modified section 212(c) of the Act to preclude the waiver it provides in the case of one who is deportable by reason of having committed one of the grounds of deportability covered under a specified section of the Act. Matter of Fuentes-Campos, supra, at 908.2
- That the waiver remains available to one who is excludable and seeks to overcome a ground of inadmissibility is bolstered by the fact that the Supreme Court has long recognized that aliens seeking admission are distinguished from deportable aliens. Matter of Fuentes-Campos, supra, at
908 (citing Leng May Ma v. Barber, 357 U.S. 185, 187 (1958); Landon v. Plasencia, 459 U.S. 21, 25-26 (1982)). - Admissibility as an immigrant is determined in a variety of contexts, and an alien seeking adjustment of status in deportation proceedings is assimilated to the position of one making an entry, and must establish admissibility. Matter of Connelly, 19 I&N Dec. 156 (BIA 1984); see also Matter of Jiminez-Lopez, 20 I&N Dec. 738, 741 (BIA 1993); Matter of Rainford, 20 I&N Dec. 598 (BIA 1992); Matter of Hernandez-Casillas, 20 I&N Dec. 262, 292-93 (BIA 1990; A.G. 1991).
- A lawful permanent resident retains his status until entry of a final administrative order of deportation, Matter of Lok, 18 I&N Dec. 101 (BIA 1981),3 and may apply for a section 212(c) waiver in connection with an application for adjustment of status made in deportation proceedings. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993); Matter of Lok, 16 I&N Dec. 441 (BIA 1978); Matter of Lok, 15 I&N Dec. 720 (BIA 1976); Matter of Smith, 11 I&N Dec. 325 (BIA 1965); see also
8 C.F.R. §§ 212.3(e) ,245.1(f) (1997). See generally 62 Fed. Reg. 10,312, 10,375-77 (1997) (to be codified at8 C.F.R. § 240.49 ) (interim, effective Apr. 1, 1997). - An alien who establishes admissibility and adjusts his status in deportation proceedings is not deportable, Matter of Rainford, supra; Matter of Gabryelsky, supra; see also Matter of G-A-, 7 I&N Dec. 274 (BIA 1956), and there is neither a statutory basis which justifies limiting the forum in which an alien may establish admissibility, nor any rational reason to distinguish among those who require a section 212(c) waiver to be admissible.
II. THE PLAIN LANGUAGE OF THE STATUTE LIMITS A SECTION 212(c) WAIVER TO OVERCOME DEPORTABILITY, BUT NOT INADMISSIBILITY
The statutory language determines both our analysis and our implementation of any provision enacted by Congress. Where the language is plain, we must accord its unequivocal meaning, and that is the end of the matter. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). The majority has found, adamantly, that the statutory language of section 440(d) of the AEDPA is plain, Matter of Fuentes-Campos, supra, and that this is the paramount index of congressional intent. Id. at 907.
Rejecting the conclusion of the Immigration Judge in Fuentes-Campos, who contended that the statutory phrase who is deportable by reason of referred to any alien who has committed a described criminal offense, we
We have found that the statutory language who is deportable is plain. Unambiguous. A term of art. Matter of Fuentes-Campos, supra, at 909. Loose and inexact references to the phrase who is deportable by the majority in the case before us, as though the phrase refers broadly to every person in deportation proceedings, are inconsistent with the statutory language and with our analysis in Matter of Fuentes-Campos.
There is neither any express statement in the text, nor any equivocal suggestion in the statutory language of section 440(d) of the AEDPA, to suggest that Congress intended, in this respect, to restrict waivers available under section 212(c) to overcome inadmissibility, albeit in the context of a deportation proceeding. There is no basis to believe that Congress’ silence in this regard was due to an accident of draftsmanship. INS v. Phinpathya, 464 U.S. 183, 191 (1984). By contrast, as we discuss in Fuentes-Campos, other sections of the AEDPA explicitly address application of the statute to excludable or inadmissible aliens. See AEDPA § 421(a), 110 Stat. at 1270.
Once again, in the instant decision, the majority has emphasized that the statutory language is unambiguous. Matter of Gonzalez-Camarillo, 21 I&N Dec. 937 (BIA 1997). The statutory language in question is the same. The statutory language itself, and Matter of Fuentes, supra, which purports to interpret it, then, are the proper guides to our determination in this case. That language refers to one who is deportable, not to all those in deportation proceedings no matter what the posture of their case.
III. ADMISSIBILITY AND ADJUSTMENT OF STATUS
Adjustment of status is a procedure through which an alien either establishes his or her admissibility as an immigrant, or is found excludable and
A. Underpinnings of Adjustment of Status
The term adjustment originally described a wide variety of administrative remedies that result in lawful permanent resident status. See David L. Neal, The Changing Dynamics of Adjustment of Status, Immigration Briefings, May 1995, at 2.6 For almost a century, adjustment of status procedures have provided an alternative to the hardships of having to travel or remain abroad for a lengthy period of time. S. Rep. No. 1137, 82d Cong., 2d Sess. 26 (1952).7
The present mechanism of adjustment of status was enacted on June 27, 1952, to replace the administrative alternative of pre-examination, and it allowed qualified aliens to be admitted as immigrants without the need to leave the United States.8 See H.R. Rep. No. 1365, 82d Cong., 2d Sess. 63 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1719. Eligibility requirements for the procedure have since been expanded to allow greater access to the procedure. Matter of Grinberg, 20 I&N Dec. 911 (1994); Neal, supra, at 19, nn. 28-30.
Although as both a term and a concept, adjustment of status has evolved dramatically since its formal introduction in 1952, its legal purpose and function have never changed. The adjustment of status procedure used today is no more than an alternate means to determine and resolve the admissibility of an alien who seeks to acquire the status of a lawful resident. Satisfaction of the legal requirements for admission are determined by statute and are no different from those applicable overseas. Once eligibility for an immigrant visa has been established, the procedure is distinct from immigrant visa processing at a consular post abroad only with regard to the element of discretion attendant to the process conducted within the United States.
Adjustment of status has long been held to be available before an Immigration Judge in deportation proceedings. See
The federal courts have long recognized, as has the Board, that an alien seeking to adjust his status to that of a permanent resident is assimilated to the position of one seeking to enter the United States for permanent residence. See, e.g., Amarante v. Rosenberg 326 F.2d 58, 61 (9th Cir. 1964); Campos v. INS, 402 F.2d 758, 760 (9th Cir. 1968). Examples of representative cases, constituting decades of consistent administrative precedent upholding the availability of adjustment of status and any necessary waivers of inadmissibility in deportation proceedings, from which the majority today would deviate, include the following.
Matter of Mendez, 21 I&N Dec. 337 (BIA 1996), holding that an alien with a United States citizen wife and three United States citizen children, if otherwise eligible for an immigrant visa, is assimilated to the position of an intending immigrant, and may apply for adjustment of status and demonstrate eligibility under section 212(h)(1)(B) of the Act by establishing extreme hardship to his wife or children if he were excluded.
Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996), holding that an alien subject to deportation proceedings for document fraud may apply for adjustment of status before the Immigration Judge, but if inadmissible under section 212(a) of the Act, may also be eligible for a waiver of the ground of inadmissibility.
Matter of Jimenez-Lopez, 20 I&N Dec. 738 (BIA 1993), holding that although admission normally occurs when an applicant is permitted to pass through the port of entry, this is not the only instance in which an alien‘s admissibility is determined and communicated, as an applicant for adjustment of status under section 245 of the Act is assimilated to the position of an alien seeking entry and must demonstrate admissibility under section 212 of the Act.
Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), holding that a lawful permanent resident alien charged with deportability for both drug and weapons offenses may overcome inadmissibility by adjusting status and obtaining a waiver under section 212(c) of the Act in conjunction with an adjustment application, and is not deportable.
Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), holding that although a respondent convicted of criminal possession of a weapon is deportable under section 241(a)(2)(C) of the Act,
Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992), holding that a respondent who has been convicted of two crimes involving moral turpitude not arising from a single scheme of criminal misconduct is inadmissible under section 212(a) of the Act and is eligible for adjustment of status only if he is eligible for and should be granted a waiver of inadmissibility under section 212(h) of the Act.
Matter of Balao, 20 I&N Dec. 440 (BIA 1992), holding that a waiver under section 212(h) is available in conjunction with an application for adjustment of status, where it may be used to waive inadmissibility that would otherwise preclude adjustment of status.
Matter of Goldeshtein, 20 I&N Dec. 382 (BIA 1991), holding that an alien present in the United States who applies for adjustment of status under section 245 of the Act and requires a waiver of inadmissibility may obtain one, even though section 212(h) addresses the eligibility of an alien seeking to enter the United States.
Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), holding that an alien applying for adjustment of status under section 245 is assimilated to the position of an alien who is making an entry for the purpose of deciding whether the alien meets the requirement of section 245(a) that he be admissible to the United States for permanent residence.
Matter of Parodi, 17 I&N Dec. 608 (BIA 1980), holding that applicants for adjustment of status have been held to be in the same position as aliens presenting themselves at the border, seeking entry as lawful permanent residents, and an alien deportable under section 241(a)(4) of the Act may obtain a waiver under section 212(h) of the Act in deportation proceedings in conjunction with an adjustment application.
Matter of Lok, 16 I&N Dec. 441 (BIA 1978), holding that a waiver of inadmissibility under section 212(c) of the Act may be granted in deportation proceedings in connection with an application for adjustment of status. See also Matter of Lok, 15 I&N Dec. 720 (BIA 1976).
Matter of Zoellner, 15 I&N Dec. 162 (BIA 1974), holding that an alien convicted of two crimes involving moral turpitude and found deportable under section 241(a)(4) of the Act was properly advised that he could apply for both adjustment of status under section 245 and an application for a waiver of inadmissibility under section 212(h) of the Act.
Matter of Katsanis, 14 I&N Dec. 266 (BIA 1973), holding that an alien applying for adjustment of status is assimilated to the position of an alien seeking to enter the United States for permanent residence.
Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971), holding that when coupled with an application for adjustment of status under section 245 of the
Matter of Smith, 11 I&N Dec. 325 (BIA 1965), holding that an applicant for adjustment of status under section 245 of the Act stands in the same position as an applicant who seeks to enter the United States, and as such, his application for a section 212(c) waiver can be considered in conjunction with that application.
Each of these cases, decided over more than a 30-year period, treats adjustment of status as a procedure to determine admissibility. The majority has neither overruled nor modified any of these authorities, yet improperly ignores them in favor of the result obtained in their opinion.
IV. CONCURRENT APPLICATIONS FOR ADJUSTMENT OF STATUS AND FOR A SECTION 212(c) WAIVER IN DEPORTATION PROCEEDINGS
The long and consistent history of administrative precedent and regulations demonstrates the availability of adjustment of status to one in deportation proceedings, such as the respondent. As we recognize in Matter of Fuentes-Campos, supra, it would have been possible for Congress to preclude from eligibility to apply for section 212(c) relief any alien convicted of a described criminal offense. And Congress did not do so. Id. at 908.
There is nothing in the statutory language to suggest that Congress intended section 440(d) or any other section of the AEDPA to alter the long-standing practice, affirmed in the regulations, of entertaining applications for waivers of admissibility in connection with adjustment of status applications made in deportation proceedings. See
A waiver granted in conjunction with adjustment of status is not, as the majority seems to suggest, allowed to achieve some type of equality between deportable and excludable aliens under Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and Matter of Silva, 16 I&N Dec. 26 (BIA 1976). It has a separate and
A. Access To Adjustment of Status in Deportation Proceedings
The majority has acknowledged that is deportable is a term of art, noting the self-evident fact that aliens in exclusion proceedings seeking admission to the United States are not deportable. Matter of Gonzalez-Camarillo, supra, at 940; Matter of Fuentes-Campos, supra, at 909. Yet, for purposes of our adjudication today, the majority too casually interchanges the actual statutory language, which it acknowledges is plain and unambiguous and refers to a person who as a matter of substantive law is deportable, with the jurisdictional posture of one who is in a deportation proceeding. These terms are not the same.
Although it is correct to say that section 440(d) precludes eligibility for a section 212(c) waiver for some persons who are in deportation proceedings, it is not the case that the language bars the waiver to all who once may have been, in the future might be, or are now, in deportation proceedings. The statute must be read as a whole, and various provisions provide both for adjustment of status and for related waivers of inadmissibility. See K Mart Corp. v. Cartier, 486 U.S. 281, 291 (1988); COIT Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989) (stating that whole statute interpretation dictates that statutory sections should be read in harmony to achieve a harmonious whole).
Adjustment of status, resulting in admission as a lawful permanent resident, is available in deportation proceedings with or without any necessary waivers of inadmissibility, including a section 212(c) waiver to overcome excludability.10 See Matter of Gabreylsky, supra; Matter of Lok, supra; Matter of Smith, supra; see also
An alien who establishes admissibility and adjusts his status in deportation proceedings is not deportable. Matter of Rainford, supra (citing and following Matter of Rafipour, supra, for the proposition that once admitted for permanent residence an alien is not deportable for a prior act, and distinguishing Matter of V-, supra, as inapplicable to adjustment of status inasmuch as the alien does not make an entry; Matter of Gabreylsky, supra; Matter of G-A-, supra; see also Foti v. INS, 375 U.S. 217 (1963) (treating deportation proceedings as involving a comprehensive adjudication which encompasses the adjudication of ancillary applications for relief from deportation).
No matter what the majority may think Congress meant, they cannot rewrite the statute to preclude from a section 212(c) waiver to overcome admissibility, an alien who is not deportable (on any of the covered grounds) by virtue of being eligible for adjustment of status in deportation proceedings. See West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-102 (1991); Blanchard v. Bergeron, 489 U.S. 87, 89 (1989) (Scalia, concurring) (indicating that citations of particular judicial decisions in legislative history are unreliable evidence of what the voting Members of Congress actually had in mind); see also Matter of Hernandez-Casillas, supra, at 276 (Vacca, dissenting) (citing Reed v. United States, 743 F.2d 481, 484 (7th Cir. 1985), cert. denied, 471 U.S. 1135 (1985), for the rule that where the language is clear, courts are without the authority to engage in creative writing of a provision).
The majority here pursues the same line of faulty reasoning that we rejected outright when the Immigration and Naturalization Service proposed that who is deportable actually should be read to mean is excludable and/or deportable. Matter of Fuentes-Campos, supra, at 999. The majority‘s suggestion that it is for the respondent to present affirmative legislative history in support of a reading of the statute which establishes that it extends only to an alien who is deportable rather than to all aliens in deportation proceedings stands the process of statutory interpretation on its head. As we stated, Congress prohibited the waiver for an alien who is deportable. Id.
Where the statutory language is clear on its face, as here, the inquiry ends and no review of legislative history is necessary. Nor does this reading lead to an unreasonable result, and even if it did, the plain language would control. Commissioner of Internal Revenue v. Asphalt Products Co., Inc., 482 U.S. 117, 1221 (1987); see also Peabody Coal Co. v. Navajo Nation, 75 F.3d 457, 486 (9th Cir. 1996).
B. Treatment of Similarly Situated Persons Seeking Admission
It must be borne in mind that the section 212(c) waiver, as enacted originally, addressed persons returning from abroad to a lawful unrelinquished domicile, and required no equitable considerations to conclude that a waiver was available in connection with an application for adjustment of status, since the posture of an alien seeking adjustment was the same as one seeking to enter. Each must demonstrate admissibility. In this sense the posture of one seeking to adjust his status in deportation proceedings is distinct from that of an alien who we have construed as eligible to seek a waiver nunc pro tunc when he would have been inadmissible at entry.
The alien seeking adjustment must demonstrate admissibility now, whereas the alien seeking a waiver nunc pro tunc must be afforded the benefit of a legal fiction that had she been found inadmissible when seeking readmission as a lawful resident, she could have applied for the waiver then and there. The earlier cases which address the section 212(c) waiver recognize these as separate exceptions to the statutory terms. To the extent that inexact reasoning in precedent cases blurred the distinction between these two situations, they presented a less than accurate description of the legal postures of the respective aliens.
The appeal before us is not about Francis v. INS, supra, or Matter of Silva, supra. It is not about establishing equitable treatment between a deportable alien who, but for the fact he is sedentary, faces comparable charges and is similarly situated to one who undertook to travel abroad. See Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993); Matter of L-, 1 I&N Dec. 1 (BIA 1942). Indeed, the majority is correct is noting that the Francis rationale which we adopted in Matter of Silva, supra, involved a discretionary waiver to excludable aliens, and was silent as to deportable aliens whether or not they were similarly situated. It did not involve an express legislative provision as exists in section 440(d) of the AEDPA, expressly barring a waiver for an alien who is deportable on certain deportation grounds.
Nevertheless, the majority‘s analysis is in error. The majority misconstrues Matter of Smith, supra, as a case involving the question of equal protection between deportable and inadmissible aliens, later addressed in
Unlike the Francis/Silva line of cases, which relied on equitable considerations between deportable and excludable aliens to extend access to the section 212(c) waiver as it then existed, Matter of Smith, supra, is directly on point with the instant case in that it addressed the position of an alien seeking to establish admissibility. Indeed, in distinguishing a nunc pro tunc argument in Matter of Arias-Uribe, supra, we quoted Matter of Smith for the principle that that there is no valid basis to deny a waiver to an alien seeking adjustment of status who must establish his admissibility, just as any entrant must, on the technical ground that he is not returning to the United States. Matter of Arias-Uribe, supra, at 699; see also Francis v. INS, supra, at 271.
In any event, it is not necessary for us to address here any issue of equal protection as between an alien who seeks a waiver to overcome excludability and establish admissibility, and one charged for the same offense who requires a waiver to overcome a ground of deportability. The classifications in question are different from those at issue in Francis. This case is concerned with equal treatment of aliens, all of whom are seeking to establish their admissibility, including those who apply at consular posts abroad, during inspection and admission at the border or a port of entry, those who file applications for adjustment of status submitted before a district director, and those who file applications for admission through adjustment of status presented before an Immigration Judge in exclusion or deportation proceedings. The only difference between them is the forum in which they seek adjustment of status.
In this regard, the majority‘s argument not only falls short of the mark, but actually supports the result for which the respondent advocates. Congress was silent about the availability of a section 212(c) waiver in connection with an application for adjustment of status in deportation proceedings. The distinction the majority seeks to impose is not one created by the statute itself and the differential treatment [resulting in] . . . inequality is not inherent in the statutory scheme. Matter of Gonzalez-Camarillo, supra, at 942. It is wholly irrational. Yeung v. INS, 76 F.3d 337 (11th Cir. 1996); see also Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994); Francis v. INS, supra.
It is a basic canon of statutory construction that where we can interpret a statute so as to avoid any constitutional infirmity, we should do so. United States v. Witkovich, 353 U.S. 194, 199 (1957). Although we may not rule upon the constitutionality of the statutes we apply in our adjudications,
V. CONCLUSION
The interpretation relied upon by the majority violates not only the express language of the statute and the principle of statutory construction that silence is not presumed to be accidental, but our own precedent. At the same time, it creates a potential constitutional infirmity in calling for different treatment between qualified lawful permanent resident aliens who need a section 212(c) waiver to overcome excludability and establish admissibility. The respondent is seeking adjustment of status anew, which requires that he establish that he is not excludable, and he is entitled to apply for and to be granted a waiver of inadmissibility under section 212(c) of the Act in conjunction with his application.