MATTER OF HERNANDEZ-CASILLAS
A-17963863
In Deportation Proceedings
Decided by Board January 11, 1990
Decided by Attorney General March 18, 1991
Interim Decision #3147
(2) The Attorney General concludes that a lawful permanent resident of the United States, who has been found deportable under section 241(a)(2) of the Act,
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
ON BEHALF OF RESPONDENT: Barbara Hines, Esquire, 1005 East 40th Street, Austin, Texas 78751
ON BEHALF OF SERVICE: Lawrence J. Hadfield, General Attorney
BY: Milhollan, Chairman; Dunne, Board Member. Concurring Opinion: Heilman, Board Member. Dissenting Opinion: Vacca and Morris, Board Members.
BEFORE THE BOARD
(January 11, 1990)
In a decision dated March 14, 1986, an immigration judge found the respondent deportable as charged, denied his motion to terminate proceedings, denied his application for relief under section 212(c) of the Immigration and Nationality Act,
At his March 14, 1986, deportation hearing, the respondent, through counsel, denied the allegations in the Order to Show Cause and denied deportability. The Immigration and Naturalization Service introduced into evidence a certified conviction record. The conviction record includes a complaint that the respondent knowingly and willfully entered the United States at a time and place other than as designated by immigration officers. The complaint further states that the respondent was observed entering the United States by Border Patrol Agents at a point near Del Rio, Texas, by wading the Rio Grande River, and that he was guiding across the river a group of illegal aliens whom he planned to transport to the Austin, Texas, area for a fee of approximately $1,000. The respondent was convicted on his plea of guilty of the offense of entering the United States at a time and place other than as designated by immigration officers. He admitted at the hearing that the conviction record related to him.
At the hearing, the respondent made a motion to terminate his deportation proceedings on the ground that the Service violated Immigration and Naturalization Service Operations Instructions 242.1a(13) by not including an averment on the Order to Show Cause that the respondent was admitted as an immigrant and has not abandoned his residence.1 This motion was denied by the immigration judge.2 The respondent then applied for a waiver of inadmissibility pursuant to section 212(c) of the Act. An Application for Advance Permission to Return to Unrelinquished Domicile (Form I-191) and supporting documents were introduced into evidence. The respondent made an offer of proof of the testimony he and his wife would give in support of the application. The offer of proof essentially stated that the
The immigration judge denied the application for a section 212(c) waiver on the ground that this relief is not available to an alien who is deportable under section 241(a)(2) of the Act for having entered the United States without inspection.
On appeal, the respondent has not challenged his deportability on the entry without inspection charge. However, he does argue that the deportation proceedings should have been terminated because of the violation of Operations Instructions 242.1a(13). We disagree. To begin with, Operations Instructions generally do not have the force of law. They furnish only general guidance for Service employees and do not confer substantive rights or provide procedures upon which an alien may rely. Ponce-Gonzalez v. INS, 775 F.2d 1342 (5th Cir. 1985); Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981); Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980). Moreover, the respondent suffered no harm from the omission on the Order to Show Cause. See, e.g., Nicholas v. INS, supra; Matter of Santos, 19 I&N Dec. 105 (BIA 1984). It was never disputed that the respondent was a longtime lawful permanent resident of the United States.
The respondent‘s primary contention on appeal is that he is eligible for section 212(c) relief. The respondent asserts, as he did during the proceedings below, that the Service should lodge a charge against him under section 241(a)(13) of the Act, relating to the smuggling of aliens for gain. Since section 241(a)(13) has a corresponding exclusion ground (section 212(a)(31) of the Act), it is argued that the respondent would be eligible for section 212(c) relief if the additional charge is made. The respondent cites the case of Marti-Xiques v. INS, 713 F.2d 1511 (11th Cir. 1983), vacated on rehearing, 724 F.2d 1463 (11th Cir.), decided on other grounds, 741 F.2d 350 (11th Cir. 1984), for the proposition that where a respondent is deportable under two grounds arising out of the same incident, section 212(c) permits waiver of an unenumerated ground if a more serious ground is an enumerated ground for the waiver. Finally, the respondent contends that the statute as construed by the immigration judge is unconstitutional and violates the respondent‘s equal protection rights.
This case affords us an opportunity to address the issue of the availability of section 212(c) to aliens who have been charged with deportability under section 241(a)(2) for entry without inspection, and to other aliens deportable under certain other grounds. At present, a section 212(c) waiver is available in deportation proceedings only to those aliens who have been found deportable under a ground of
In deciding to change our approach to section 212(c) waivers, we have considered that section 212(c) as currently applied bears little resemblance to the statute as written.3 As written, the provision applies only in exclusion proceedings to lawful permanent residents “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.” However, the Board has for many years allowed the granting of a section 212(c) waiver in deportation proceedings nunc pro tunc. Matter of M-, 5 I&N Dec. 598 (BIA 1954); see also Matter of Edwards, 10 I&N Dec. 506 (BIA 1963, 1964); Matter of G- A-, 7 I&N Dec. 274 (BIA 1956); Matter of F-, 6 I&N Dec. 537 (BIA 1955); Matter of S-, 6 I&N Dec. 392 (BIA 1954; A.G. 1955). This exception was in keeping with the allowance, as early as 1940, under the seventh proviso to section 3 of the Immigration Act of 1917, which was the predecessor to section 212(c), that relief could be had in deportation proceedings where an alien departed from the United States and returned after the ground of exclusion arose. Matter of L-, 1 I&N Dec. 1 (BIA, A.G. 1940).
In 1976, the availability of section 212(c) relief was significantly expanded when the United States Court of Appeals for the Second Circuit held that a section 212(c) waiver should be available regardless of whether the applicant had ever departed from the United States. Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The court held that “[f]undamental fairness dictates that permanent resident aliens who
It is thus evident that section 212(c) has long since been expanded to encompass many aliens not originally contemplated by the statute. We have concluded that the same fundamental fairness/equal protection arguments made in Francis v. INS, supra, can and should be invoked to make section 212(c) relief available to aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 212(c). That is, since a 212(c) waiver is not available in exclusion proceedings to aliens who are excludable as subversives or war criminals, it would not be available in deportation proceedings to aliens deportable under sections 241(a)(6), (7), (17), and (19).4 Having made the section 212(c) waiver, a form of relief ostensibly available only in exclusion proceedings, available in deportation proceedings, we find no reason not to make it applicable to all grounds of deportability with the exception of those comparable to the exclusion grounds expressly excluded by section 212(c), rather than limiting it, as now, to grounds of deportability having equivalent exclusion provisions. The two approaches are equally logical and bear equally little resemblance to the statute as written. Giving a broader application to the waiver, however, has the benefit of alleviating potential hardships to sometimes deserving aliens.
We recognize that this approach is in conflict with prior precedents of this Board. In Matter of Granados, supra, we considered whether section 212(c) should be extended to cover a ground of deportability (conviction for possession of a sawed-off shotgun) which is not also a ground of exclusion. We declined to do this, indicating that to allow it would make section 212(c) relief available to all deportability grounds, including the subversive grounds which were specifically excluded from 212(c). We also made reference to the plain language and legislative history of section 212(c).
On further contemplation, we find that the rationale of Matter of Granados, supra, is not sufficiently persuasive to prevent the change we now are making. There is no reason why section 212(c) would have
Our new approach to section 212(c) is also somewhat in conflict with a recent decision of the United States Court of Appeals for the Ninth Circuit. Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988). That case involved an alien deportable under section 241(a)(14) of the Act for possession of a sawed-off shotgun. The court held that that ground of deportability could not be waived by section 212(c). In so holding, the court emphasized the very serious nature of the alien‘s offense, and the fact that Congress had in various contexts given special treatment to firearms offenses, and especially to those involving sawed-off shotguns. However, the court also concluded that Congress had intended that section 212(c) relief only be available to waive certain grounds of excludability under section 212 of the Act, and that it could not waive a ground of deportability for which there is no “substantially identical” ground for exclusion. Id. at 1326. Inasmuch as the present case does not arise in the Ninth Circuit, however, we are not bound by it here and will not apply Cabasug outside that circuit. We note that we find the court‘s reliance on congressional intent unpersuasive for the reasons outlined above.
Our decision today is not without support in case law. In Marti-Xiques v. INS, supra, the alien was charged with deportability under section 241(a)(2) for unlawful entry, but also under section 241(a)(13) for smuggling aliens for gain. The latter, having an equivalent under the exclusion statute, was considered a waivable offense under section 212(c). The court indicated its difficulty with the result if the entry without inspection charge could not be waived:
While the purpose of the section is to allow forgiveness of offenses that are in many cases not serious enough to constitute grounds for deportation, INS construes the statute to permit forgiveness for the more serious offense, smuggling aliens, but to preclude forgiveness for the less serious offense, entering without inspection.
Id. at 1515. In order to avoid this result, the court held that “where an appellant is deportable under two grounds arising out of the same incident, section 212(c) permits waiver of an unenumerated ground if a more serious ground is an enumerated ground for waiver.” Id. at
Our holding is somewhat at odds with the literal language of Sec. 212(c), which permits waiver as to enumerated grounds of exclusion. Section 212(c) makes no mention of waiver with respect to grounds of deportation. It also does not mention deportation proceedings. Despite this latter omission, INS interprets Sec. 212(c) to apply in deportation proceedings. Cf. Comment, [Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act], 47 U. Chi. L. Rev. 771, 774-75 n.19 (1980) (arguing that section 212(c) should not apply in deportation proceedings). It strikes us as inconsistent for INS, on the one hand, to attribute no significance to Sec. 212(c)‘s failure to mention deportation proceedings but, on the other hand, to argue that section 212(c)‘s silence regarding grounds of deportation evinces an intent to preclude relief with respect to grounds of deportation that are not one of the enumerated grounds of exclusion. INS cannot have it both ways. If Sec. 212(c)‘s failure to mention deportation proceedings generally has no significance, then its omission of any reference to grounds of deportation likewise has no significance.
As mentioned above, the respondent in this case asks that the Service be required to charge him under section 241(a)(13), and he then urges us to adopt the holding of the court in Marti-Xiques v. INS, supra. We consider that decision to be a piecemeal approach to the problem before us which, if adopted, would likely raise new issues regarding which deportation grounds are “more serious” than others. Moreover, availability of section 212(c) relief under that decision depends upon which charges happen to be made in a case and would result in situations like the one before us, where the alien desires to have a more serious charge of deportability lodged against him, so he can apply for a section 212(c) waiver. Our approach seems a cleaner, simpler one.
In reaching our decision today, we have been ever mindful of the fact that section 212(c) is, in essence, a forgiveness statute. It allows a longtime lawful permanent resident to make a mistake, and to be forgiven for it in the immigration context, to keep his permanent resident status despite the mistake. It is a generous provision of the law and we believe that today‘s action is fully in keeping with its generous spirit. Moreover, we have been troubled by the fact that an alien convicted, for example, of a serious drug offense can be statutorily eligible for a section 212(c) waiver, but an alien who makes an unlawful entry into the United States, or one who fails to comply with the law‘s change of address requirements,5 could not establish statutory eligibility for relief. We emphasize that our decision only relates to statutory eligibility, and that, as always, an applicant for a
Since the immigration judge found the respondent ineligible for relief because of the charge of deportability brought against him, the respondent did not have an opportunity to establish that he was otherwise eligible for the waiver, and deserving of discretionary relief. A remand is therefore necessary to enable the respondent to fully present his application for a waiver under section 212(c) of the Act. Accordingly, the following orders will be entered.
ORDER: The appeal is sustained insofar as it relates to the denial of a waiver under section 212(c) of the Act.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing decision.
CONCURRING OPINION: Michael J. Heilman, Board Member
I respectfully concur.
This decision to inject some rationality into the section 212(c) waiver process is overdue and sorely needed. For almost 13 years, the lawful permanent resident who entered without inspection was in a worse position than a permanent resident who had committed a serious felony under the Board and judicial decisions praised in the dissenting opinion. The lawful permanent resident who entered without inspection was ineligible for the 212(c) waiver on the curious ground that there was no “counterpart” to the entry without inspection provision in section 241(a)(2) of the Immigration and Nationality Act,
The dissent makes much of the supposed violation of elementary rules of statutory construction and legislative history by the majority. For substantial reasons, it appears to me that reliance on statutory construction and congressional intent is basically of little assistance, if not completely irrelevant to any useful analysis of the section 212(c) waiver.
While the dissent may go back to 1953 to point out how this decision departs from previous interpretations, for all intents and purposes, the relevant history of section 212(c) began in 1976, with the decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), whose holding that a section 212(c) waiver was available in deportation proceedings, as well as in exclusion proceedings, was adopted by this Board in Matter of Silva, 16 I&N Dec. 26 (BIA 1976). The Board apparently adopted the United States Court of Appeals for the Second Circuit interpretation
In the years that followed the decision to make the section 212(c) waiver available to lawful permanent residents in deportation proceedings, there were a number of attempts to define the limits of the waiver, and the formula that was finally settled upon by the Board was to limit the applicability of the waiver to deportation offenses which had a “comparable ground” under the exclusion provisions. Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff‘d, 624 F.2d 191 (9th Cir. 1980). Matter of Granados, supra, stated that unless the waiver was limited to “comparable grounds” of exclusion, the waiver as applied to deportation proceedings would supposedly make that “relief available for all grounds of deportability including the subversive grounds,” resulting in a violation of the “plain language or the legislative history of section 212(c).” Id. at 728.
In the view of the dissenting members, this transgression has now occurred in the majority‘s opinion. This transgression, however, occurred 14 years ago in Matter of Silva, supra. If the dissenters were truly concerned with statutory construction and legislative intent, they would have to actually go further than they do. They would have to call for abandonment of the applicability of the section 212(c) waiver to deportation proceedings and the overruling of Matter of Silva, supra, and all of the decisions that followed.
Anyone who invokes principles of statutory construction and legislative history in a discussion of section 212(c) at this point cannot present any logical and coherent argument for partial adoption of the waiver to deportation proceedings. As was noted in a recent judicial decision, “On its face, the statute has no application in the case before us.” Cabasug v. INS, 847 F.2d 1321, 1324 (9th Cir. 1988). That “case” was, as here, a deportation proceeding in which a section 212(c) waiver was sought. This is certainly true, as section 212(c) in its “clear and unambiguous” language, as the dissent describes it, applies only to a lawful permanent resident who “temporarily proceeded abroad voluntarily” and who is “returning to a lawful unrelinquished domicile of seven consecutive years.” No such circumstances exist in this appeal, and this is not an exclusion proceeding.
Since section 212(c) is clear on its face, as a general rule of statutory construction, no inquiry into congressional intent would be required, unless the language led to a bizarre or irrational result. See Rector of Holy Trinity Church v. United States, 143 U.S. 457 (1892).
It appears to me that the dissent suffers from the handicap that meets any legal analysis that attempts to limit the coverage of a statutory provision once its most elementary and basic substance has been abandoned. Here, we have the overriding fact that the waiver was meant to waive grounds of exclusion, not deportation. Second, we have the indisputable fact that this limitation has been abandoned by judicial and administrative choice. As the core of this waiver has been jettisoned, any reference to congressional intent has become basically irrelevant. Since Congress clearly never intended to provide this waiver to anyone other than an applicant for admission, it could hardly be said to have any intent whatsoever in regard to persons in deportation proceedings.
The dissent, though, does not advocate returning to the actual statute, and applying it solely to applicants for admission in exclusion proceedings. It chooses to limit this waiver so that it is not available to lawful permanent residents who enter without inspection. The legislative history provides no justification for this choice. The statute itself offers no authority for this, either. It is true that the exclusion provisions do not refer to an offense characterized as entry without inspection. This is hardly a portentous silence, because the offense by its very nature is accomplished by an alien who has entered and cannot be committed by one who has not. An alien in exclusion proceedings is by definition an alien who has not entered the United States and so cannot logically have committed the offense of entry without inspection. That is the reason Congress could not legislate such an offense as a ground of exclusion under section 212 of the Act. If Congress could not do so in the only context it was dealing with, aliens who had left and were seeking admission, no significance can be drawn from the fact that it did not do so.
In addition, the decision the dissent would continue to apply, Matter of Granados, supra, actually and somewhat ironically, fails the dissent‘s own standards when measured against the statutory construction and legislative intent tests. In Matter of Granados, supra, the stated reason for adopting the “counterpart” test was to insure that the waiver, when applied to deportation proceedings, would not exceed
Also, and of no small importance, the assumption underlying Matter of Granados, supra, that an interpretation which could waive a conviction for possession of a sawed-off shotgun would compel waiver of the “subversive” deportation grounds, was entirely bogus, as the majority decision recognizes today. Whether or not there is a “counterpart” exclusion provision for possession of a sawed-off shotgun, or as here, for entry without inspection, there is a “counterpart” provision for the “subversive” exclusion grounds in the deportation provisions. To the extent, then, that one wished to comply with any vestigial congressional intent, once section 212(c) had been essentially trashed, one could with complete clarity conclude that Congress did not intend to waive the “subversive” grounds of exclusion and simply parallel that by barring waiver of the “subversive” deportation grounds. With this new approach, one can with confidence avoid according a benefit to categories of aliens Congress clearly did not intend to benefit when it wrote the waiver provision and avoid the supposed pitfall of extending it in the manner Matter of Granados, supra, found so alarming.
No one can know what Congress intended to do in the case of a lawful permanent resident alien who had entered without inspection, because it was not concerned with such an individual in the context of exclusion proceedings, and so the dissent‘s invocation to congressional intent is the rankest guesswork. And it is guesswork that rather defies plausibility. To adopt the position that a lawful permanent resident is to be deprived of his status because of an entry without inspection is to assume that when confronted with this possibility Congress would treat this person as more despicable and more of a threat to the United States than a drug dealer or murderer, who may apply for a waiver because of “counterpart” exclusion provisions. Or to refer to another provision of the immigration laws, one would have to believe that an entry without inspection is worse conduct than smuggling in a relative or friend for no monetary gain. A lawful permanent resident who does this is not even deportable under section 241(a)(13) of the Act. But a long-term permanent resident who goes to Mexico for a weekend, loses or forgets his “green card,” whose admission is denied by an immigration inspector, who then crosses the border without inspection
I would readily concede that very little that has been done in regard to section 212(c) in the past 13 years may be justified by reference to statutory construction or legislative intent and would even concede that we are dealing with an administratively and judicially concocted creature. As this is so, it seems to me it is necessary for this concoction to pass some elementary tests of rationality and fairness. The majority approach does this. It allows the section 212(c) waiver to be granted to a lawful permanent resident alien who has entered without inspection, the most common and most de minimis of the acts which render a person deportable. On the other hand, it bars this waiver to the only persons Congress specifically barred when it first enacted this much-mangled and sorely battered provision.
DISSENTING OPINION: Fred W. Vacca, Board Member
I respectfully dissent.
The respondent in these proceedings was charged with a single ground of deportability, i.e., entry without inspection. His deportability under section 241(a)(2) of the Immigration and Nationality Act,
On appeal, the respondent argues, inter alia, that, as an alien with a record of lawful permanent residence beginning in 1967, he is eligible for a waiver of inadmissibility under section 212(c) of the Act,
Clearly, the issue before me is whether Congress intended that aliens who are deportable because of an entry into the United States without inspection are within a class that may be eligible under section 212(c) for a waiver of inadmissibility.
Inherent in the process of adjudicating an appeal which raises a question of legislative intent is the necessity for closely examining the specific language of the statute as well as its history. It is only in that way that we can achieve an understanding of the statute‘s meaning and gain insight into the intent of Congress. Section 212 of the Act applies to the general classes of aliens who are ineligible to receive visas and who are excluded from admission. That section also pertains to various waivers of inadmissibility. Section 212(c) provides 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 paragraphs (1) through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b).
Under the provisions of this section, the Attorney General or his delegates may, as a matter of administrative discretion, waive one or more grounds of exclusion. There are 33 grounds of exclusion enumerated in section 212(a). Section 212(c) provides that the grounds described in paragraphs (1) through (25) and (30) and (31) may be waived, but that the grounds listed in paragraphs (26) through (29) and (32) and (33) may not be waived. The unwaivable grounds generally affect public safety or national security. The alien seeking a waiver under section 212(c) must establish that he is lawfully admitted for permanent residence, that he temporarily proceeded abroad voluntarily and not under an order of deportation, and that he is returning to a lawful unrelinquished domicile of 7 consecutive years. Before the Attorney General may exercise his discretionary authority, he must be satisfied that the standards set forth by the Congress in the statute have been met. Stated in different terms, the applicant for a waiver of inadmissibility must establish his statutory eligibility for the relief.
To determine congressional intent, I have examined the statute for clarity, preciseness of meaning, absence of ambiguity or vagueness, and certainty of purpose. Upon examination, I find that section 212(c) is well constructed and that its language is clear and unambiguous. There is certainty and preciseness as to which classes of excludable aliens may seek a waiver and which classes may not. Further, the requirements for eligibility for the waiver are set forth expressly in
The ordinary and obvious meaning of a phrase is not to be lightly discounted. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); see also Russello v. United States, 464 U.S. 16, 21 (1983); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 198-99 (1976). Not only do strict rules of statutory interpretation hold that the plain language of the statute controls its application, but the Supreme Court has held and reaffirmed with regard to this statutory scheme that it is bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982), in turn quoting Richards v. United States, 369 U.S. 1, 9 (1962)). It is an axiom of statutory construction that the duty of a court “is to construe a statute consistent with the intent of Congress as expressed in the plain meaning of its language.” Sutton v. United States, 819 F.2d 1289, 1292 (5th Cir. 1987). “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” United States v. American Trucking Associations, 310 U.S. 534, 543 (1940). The United States Supreme Court has noted on numerous occasions that “in all cases involving statutory construction, ‘our starting point must be the language employed by Congress’ . . . and we assume ‘that the legislative purpose is expressed by the ordinary meaning of the words used.‘” American Tobacco Co. v. Patterson, supra (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979), and Richards v. United States, supra). The “plain meaning” of the words used in a statute must be given effect. See INS v. Phinpathya, supra.
In its decision the majority declares “on further contemplation” that “[a]s to the language and legislative history of section 212(c), we simply find that given the unusual history of section 212(c), and the long distance already travelled from the ‘plain language’ of that statute, it makes little sense now to adhere to strict rules of statutory construction.” The operative word in the above quotation is “simply.” The majority has indeed “simply” ignored the plain meaning of the statute. The majority has also “simply” ignored the legislative history of the statute. Had the majority diligently studied the congressional reports and historical documents, it would find little solace or support for its “new approach to section 212(c).” The following is an excerpt from a section of the legislative history of the Immigration and Nationality Act of 1952 entitled “Discretionary Authority“:
Having concluded that failure by an alien to meet the strict qualitative tests will disqualify him for admission to the United States, the committee is of the opinion that any discretionary authority to waive the grounds for exclusion should be carefully restricted to those cases where extenuating circumstances clearly require such action and that the discretionary authority should be surrounded with strict limitations.
Under present law, in the case of an alien returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years, he may be admitted in the discretion of the Attorney General under such circumstances as the Attorney General may prescribe.
Under existing law the Attorney General is thus empowered to waive the grounds of exclusion in the case of an alien returning under the specified circumstances even though the alien had never been lawfully admitted to the United States. The comparable discretionary authority vested in the Attorney General in section 212(c) of the bill is limited to cases where the alien has been previously admitted for lawful permanent residence and has proceeded abroad voluntarily and not under order of deportation. Under existing law and under the bill, in no case may the discretion be exercised where the alien is excludable on grounds of public safety or security or as a subversive under paragraphs (27), (28), or (29) of section 212(a).
H. R. Rep. No. 1365, 82d Cong., 2d Sess., reprinted in U.S.C.C.A.N. 1653, 1705-06 (emphasis added).
Virtually 37 years have passed since the Board‘s first precedent decision interpreting the applicability of certain grounds of deportability to section 212(c) waivers. In Matter of T-, 5 I&N Dec. 389, 390 (BIA 1953), the Board held:
The charge contained in the warrant of arrest, to wit: That the respondent entered in violation of the act of February 5, 1917, in that she entered by means of false and misleading statements thereby entering without inspection, is not contained in paragraphs (1) through (25) or paragraphs (30) and (31) of subsection (a) of section 212 of the Immigration and Nationality Act. The “entry without inspection” ground of deportation appears in section 241(a)(2) of the Immigration and Nationality Act. In view of the specification in section 212(c) of the particular sections to which this discretion may be directed, we do not believe that a ground not enumerated therein can be the object of this form of discretionary relief. We therefore find that section 212(c) is inappropriate to waive the ground of deportability set forth in the warrant of arrest, nor is the respondent helped in any way by the documentary waiver for which she would have been eligible if she had regularly presented herself for inspection. We find the ground of deportability still exists and we are therefore unable to terminate these proceedings.
Similarly, the Board held in Matter of M-, 5 I&N Dec. 642, 647 (BIA 1954) that “section 212(c) does not contain authority to waive the respondent‘s entry without inspection, which is a ground of deportation under section 241(a)(2) but not a ground of excludability.”
In Matter of Granados, 16 I&N Dec. 726, 728-29 (BIA 1979), aff‘d, 624 F.2d 191 (9th Cir. 1980), the Board held:
In the present case, however, the respondent seeks the expansion of section 212(c) relief to a ground of deportation which is not a ground of excludability listed under section 212(a) of the Act. Conviction for possession of a concealed sawed-off shotgun is not a specified section 212(a) ground of excludability, nor a crime involving moral turpitude that would render the respondent excludable under section 212(a)(9) of the
Act. See United States ex rel. Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y. 1926); Ex parte Saraceno, 182 F. 955 (S.D.N.Y. 1910).
We do not reach the respondent‘s contention that his conviction constitutes a ground of excludability because if deported he would thereafter be immediately excludable. He would be excludable under section 212(a)(17) of the Act because of his deportation, not because of the underlying conviction. However, assuming for the purpose of discussion that the conviction for shotgun possession constitutes some sort of exclusion ground per se, under section 212(a) generally, it is not within the ambit of section 212(c). To adopt the respondent‘s reasoning would make section 212(c) relief available for all grounds of deportability including the subversive grounds, section 212(a)(27) to (29) of the Act, which were specifically precluded from section 212(c) relief. We see nothing in the plain language or the legislative history of section 212(c) justifying extending such administrative relief beyond the grounds listed under that section. See S. Rep. No. 1137, 82d Cong., 2d Sess. (1952); H.R. Rep. No. 1365, 82d Cong., 2d Sess. (1952); U.S. Code Cong. & Adm. News 1952, pp. 1653, 1705.
Therefore, we conclude that the respondent‘s conviction for possession of an unregistered sawed-off shotgun does not come within the grounds of excludability which are subject to a section 212(c) waiver. (Footnote omitted.)
Upon an analysis of the Board‘s precedent decisions spanning almost 4 decades, I find them well reasoned, consistent, and solidly based in law and fact. There is indeed no administrative support in these decisions for the majority‘s approach in this case. The majority would, however, overrule these decisions because they are inconsistent with its current approach. That approach, I might add, has no support in the statute or the legislative history or in the courts, as I will demonstrate later.
The majority‘s approach follows two lines of reasoning. The first line is that fairness and equal protection dictate that aliens who are deportable on various grounds should be permitted to seek a waiver of inadmissibility under section 212(c) under the same terms as certain aliens who are excludable under the statute. The majority, however, does not conclude that the statute is violative of the constitutional right of equal protection of certain aliens, nor does it espouse the view that Congress did not intend disparate treatment for separate and distinct classes of aliens, i.e., excludable aliens and deportable aliens. I find that fairness and equal protection are not the issues in this case since Congress, acting under the authority of a sovereign government to create laws affecting immigration, may create different classes of aliens and provide different procedures and remedies for each class.
The second line of reasoning expressed by the majority follows the notion that section 212(c) has been interpreted by the courts and by the Board in various ways over the years so that “as currently applied [it] bears little resemblance to the statute as written” and therefore lends itself to an expansive interpretation under the facts of this case. I find this reasoning specious because the majority has yet to identify
Since the enactment of the Immigration and Nationality Act of 1952, there has been no significant initiative on the part of Congress to amend the substantive provisions of section 212(c). Likewise, extremely few federal courts have addressed the issue posed in this case. However, the Board‘s decision in Matter of Granados, supra, was affirmed in a table case by the United States Court of Appeals for the Ninth Circuit in Granados-Gonzalez v. INS, 624 F.2d 191 (9th Cir. 1980). The issue was also discussed, but not decided, in Gutierrez v. INS, 745 F.2d 548 (9th Cir. 1984). In Gutierrez, the alien was charged with deportability under both section 241(a)(11), and under section 241(a)(2) for unlawful entry. The court noted that it was a “difficult constitutional issue” whether fifth amendment due process equal protection requires that section 212(c) relief be available for aliens deportable for entry without inspection. The court thus clearly implied that perhaps it should be made so available, but it specifically declined to decide that issue. Thus the suggestion in Gutierrez was obviously dictum. Four years later the Ninth Circuit addressed the issue and decided it in Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988). In Cabasug, the alien was deportable under section 241(a)(14) of the Act for possession of a sawed-off shotgun. The court held that that ground of deportability could not be waived by section 212(c). In so holding, the court concluded that Congress had intended that section 212(c) relief only be available to waive certain grounds of excludability under section 212 of the Act, and that it could not waive a ground of deportability for which there is no “substantially identical” ground of exclusion. While the court in Cabasug did not address an entry without inspection charge, it used broad language which limited section 212(c) availability to grounds of deportation which have equivalents under the section 212 exclusion grounds. Moreover, the court specifically stated that it was reaching the constitutional issue it had reserved in Gutierrez v. INS, supra, a case which did involve an entry without inspection charge. The court concluded in Cabasug as follows:
Appellant would have us hold that the INS, rather than Congress, has created an arbitrary distinction by its refusal to extend § 1182(c) discretion to all grounds for deportation except those explicitly excluded in § 1182(c). This is merely a rhetorical device to avoid an explicit challenge to the statute. Congress, as explained above, clearly expressed its intention that § 1182(c) relief applies only to § 1182, the exclusion statute. The Francis and Tapia-Acuna decisions held that this distinction, in combination with the administrative practice of applying the exclusion statute nunc pro tunc to aliens who had previously traveled outside the country, violated the
Constitution insofar as it required different treatment for drug offenses covered under both the exclusion and deportation statutes. We are not about to overturn an Act of Congress under the pretense that we are merely correcting an administrative aberration.
Cabasug v. INS, supra, at 1326.
In the majority‘s decision it states that its “new approach to section 212(c) is somewhat in conflict with” the Cabasug decision. (Emphasis added.) I would submit that the majority‘s approach is clearly and completely in conflict with Cabasug. I also find that Marti-Xiques v. INS, 713 F.2d 1511 (11th Cir. 1983), a decision advanced by the majority to support its decision, is factually and legally distinguishable from this case. In Marti-Xiques, the alien was charged with two grounds of deportability arising out of the same incident, i.e., entry without inspection and alien smuggling, the latter having a statutory equivalent in section 212(c). In this case, the alien was only charged with entry without inspection which, as previously stated, has no counterpart in the enumerated grounds of exclusion under section 212(c). In view of this important distinction between the two cases, I find little support in Marti-Xiques for the majority‘s approach. Moreover, the decision in Marti-Xiques was vacated and hence is no longer the law of the jurisdiction in which it was decided. See Marti-Xiques v. INS, 724 F.2d 1463 (11th Cir. 1984).
Throughout this decision, I have attempted to show the inherent weaknesses in the rationale of the majority. Above all, it should be quite clear that there is virtually no authoritative support for the majority‘s approach. The majority has boldly invaded the province of the Congress and for that there is no excuse. Accordingly, for the foregoing reasons, I would dismiss the respondent‘s appeal.
DISSENTING OPINION: James P. Morris, Board Member
I concur in the foregoing dissenting opinion.
BEFORE THE ATTORNEY GENERAL
(March 18, 1991)
The Immigration and Naturalization Service (“INS“) has requested that I review the decision of the Board of Immigration Appeals (“the Board” or “BIA“) in In re: Joel Hernandez-Casillas, No. A17 963 863 (Jan. 11, 1990) (“Board Opinion“), in which the Board held that a permanent resident alien who left the United States and then reentered illegally must be afforded the opportunity to seek discretionary relief from deportation under section 212(c) of the Immigration and
I.
1. The respondent, Joel Hernandez-Casillas, a citizen of Mexico, was admitted to the United States in 1967 as a permanent resident alien. On April 13, 1985, the respondent was arrested by border patrol agents after he reentered the United States by wading the Rio Grande River; the respondent was observed guiding a group of illegal aliens whom he planned to transport to the Austin, Texas area for a fee. See Decision of the Immigration Judge, In the Matter of Joel Hernandez-Casillas, No. A17 963 863 (March 14, 1986) (“Immigration Judge‘s Opinion“) at 1; Board Opinion at 1-2. The respondent was charged with violating
2. On April 13, 1985, the INS served the respondent with an order to show cause why he should not be deported pursuant to
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 paragraphs (1)-(25), (30), and (31) of subsection (a) of this section.
3. Although
Applying Granados to this case, the immigration judge below denied the respondent‘s application for discretionary relief under
4. On appeal to the Board, the respondent argued that the INS should be required to charge him with aiding another alien to enter the
5. The Board concluded that the respondent was entitled to seek discretionary relief under
[The respondent‘s position is] a piecemeal approach to the problem . . . which, if adopted, would likely raise new issues regarding which deportation grounds are “more serious” than others. Moreover, availability of
section 212(c) relief under [the respondent‘s position] depends upon which charges happen to be made in a case and would result in situations like the one before us, where the alien desires to have a more serious charge of deportability lodged against him, so he can apply for asection 212(c) waiver. Id. at 8. Instead, the Board opted for what it described as a “cleaner, simpler” solution, holding that discretionary relief undersection 212(c) is available in all deportation cases, except where the ground for deportation is also a ground for exclusion that the Attorney General may not waive undersection 212(c) . Id.
The Board described its holding as an extension of the many administrative and judicial interpretations of
The Board further noted that, since a Second Circuit decision in 1976, relief under
Under present Board interpretations [of
section 212(c) ], a lawfully admitted alien, convicted of a narcotics offense, who departs from and returns to the United States to an unrelinquished domicile of seven years may be permitted to remain in this country in the Attorney General‘s discretion. On the other hand, the Attorney General is without discretion to allow petitioner, a lawfully admitted alien convicted of a narcotics offense, to remain in the United States despite an unrelinquished domicile of more than seven years solely because he has never made a temporary departure from this country since the time of his conviction.
532 F.2d at 269. Relying upon the guarantee of equal protection that
In Matter of Granados, supra, the Board indicated that Francis and Silva represented the limit of its expansion of
In the present case, however, the Board overruled its holding in Granados by reading
. . .
section 212(c) has long since been expanded to encompass many aliens not originally contemplated by the statute. We have concluded that the same fundamental fairness/equal protection arguments made in Francis . . . can and should be invoked to makesection 212(c) relief available to aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted fromsection 212(c) [i.e., those grounds which the Attorney General may not waive] . . . . Having made thesection 212(c) waiver, a form of relief ostensibly available only in exclusion proceedings, available in deportation proceedings, we find no reason not to make it applicable to all grounds of deportability with the exception of those comparable to the exclusion grounds expressly excluded insection 212(c) , rather than limiting it, as now, to grounds of deportability having equivalent exclusion provisions. The two approaches are equally logical and bear equally little resemblance to the statute as written.
Board Opinion at 5 (emphases added). The Board did not base its
Applying its new approach to the present case, the Board concluded that the respondent should have been granted the opportunity to seek discretionary relief under
6. The INS appealed the decision of the Board to me on April 6, 1990.7
II.
The INS urges me to reverse the expansion of
For two reasons, I decline at this time to undertake a reexamination of these precedents and, accordingly, leave for another day the question of whether Silva should be disapproved. First, as the respondent and amici emphasize, and as the record confirms, the INS did not challenge the validity of Silva before the Board. See Respondent‘s Brief Upon Referral for Review (“Respondent‘s Brief“) at 20; Brief of Amici Curiae, American Immigration Lawyer‘s Association and National Immigration Project of the National Lawyers Guild, Inc. (”Amici Brief“) at 26-27. As a result, the Board did not discuss this issue in its opinion. In the absence of compelling circumstances, I do not consider it prudent to resolve the validity of Silva without allowing the Board to explore that question in the first instance. Second, I need not reexamine Silva in order to decide the present case for, as I shall explain, even if I assume the validity of Silva, I nonetheless must disapprove the Board‘s decision here.
I conclude that the Board erred in holding that relief under
The disruption to the statutory scheme that would be wrought by the Board‘s expansion of
Second, the rationale articulated in Francis and Silva for expansion of discretionary relief under
Under Francis and Silva, the guarantee of equal protection requires, at most, that an alien subject to deportation must have the same opportunity to seek discretionary relief as an alien who has temporarily left this country and, upon reentry, been subject to exclusion. See supra p. 6 (framing of the issue in Francis). The guarantee of equal
The constitutional guarantee of equal protection requires nothing more, as the Board itself concluded in Granados. Since that administrative decision, the constitutional soundness of Granados has been confirmed by the Ninth Circuit—the only court of appeals to address the question. See Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988). In Cabasug, the INS ordered a permanent resident alien deported based upon his conviction for a firearm offense. Id. at 1322 (citing
[T]here exists no class of persons alike in carrying [the prohibited types of firearms], and deportable or not depending on the irrelevant circumstance of whether at some previous time they took a temporary trip out of the country. The gravamen of the equal protection violation identified in Francis was just such a distinction without a material difference. In the treatment of these weapons offenses, Congress has legislated no such distinction, nor has any administrative practice created one.
Id. at 1326. The same is true of illegal entrants, such as the respondent. Here, deportation turns not upon the “irrelevant circumstance” of whether the respondent has temporarily left the United States but, instead, upon the illegal nature of his reentry.8
Although the Ninth Circuit‘s decision in Cabasug—holding that the Constitution does not require discretionary relief under
Accordingly, I conclude that the Board erred in its unjustified expansion of discretionary relief under
III.
The respondent and amici advance various additional arguments for approval of the Board‘s decision, but none of these is persuasive.11
These arguments were not raised by the respondent before the Board, nor do any of them overcome the errors in the Board‘s analysis that I have described above.
1. The respondent contends that this case is controlled by the Fifth Circuit‘s decision in Rivera v. INS, 791 F.2d 1202 (5th Cir. 1986). See Respondent‘s Brief at 14-16. This contention is incorrect. Unlike the present case, Rivera concerned the standards for calculation of the seven-year period of permanent resident status necessary for an alien to avail himself of
2. Both the respondent and amici contend that reexamination of Francis and Silva is foreclosed because Congress has not acted to disapprove those decisions through amendment of
Moreover, although some Supreme Court opinions suggest a receptiveness to arguments of congressional acquiescence, see, e.g., North Haven Board of Education v. Bell, 456 U.S. 512, 535 (1982); but see Train v. City of New York, 420 U.S. 35, 45 (1975) (“legislative intention, without more, is not legislation“), the Court, more recently, has squarely rejected such reasoning on the ground that:
[i]t is “impossible to assert with any degree of assurance that congressional failure to act represents” affirmative congressional approval of [a court]‘s statutory interpretation. . . . Congress may legislate . . . only through the passage of a bill which is approved by both Houses and signed by the President. . . . Congressional inaction cannot amend a duly enacted statute.
Patterson v. McLean Credit Union, 491 U.S. 164, 174-175 n.1 (1989) (quoting Johnson v. Transportation Agency, 480 U.S. 616, 671-72 (1987) (Scalia, J., dissenting)). Accordingly, I reject this second proposed ground for approval of the Board‘s decision.
3. The respondent contends that the INS must accord him the opportunity to seek discretionary relief under
[a]n application for the exercise of discretion under [section] 212(c) of the Act may be submitted to an immigration judge in the course of proceedings under section[] . . . 242 of the Act [i.e., deportation proceedings] . . . and shall be adjudicated by the immigration judge in such proceedings . . . .
As there is no constitutional justification for a further departure from the statutory text and as neither the respondent nor amici has identified an alternative basis for the Board‘s decision, I must disapprove the decision of the Board.
CONCLUSION
Accordingly, the decision of the Board is disapproved and the case remanded for further proceedings consistent with this opinion.16
Notes
The respondent based this argument upon the reasoning in a vacated opinion of the Eleventh Circuit. See Marti-Xiques v. INS, 713 F.2d 1511 (11th Cir. 1983). The alien in Marti-Xiques was convicted of two offenses warranting deportation: entering without inspection,
On review, the Eleventh Circuit reversed, holding that where an alien “is deportable under two grounds arising out of the same incident,
Both Matter of S— and Matter of G— A— built upon an earlier opinion of Attorney General Jackson, who had accorded similar relief under the predecessor provision to
Discretionary relief under
By regulation, the Attorney General has retained authority to review final decisions of the Board, either upon his initiative or by request.
The alien in Cabasug also argued that the determination to deny discretion under
The respondent errs in his contention that the Attorney General owes deference to the legal conclusions of the Board. See Respondent‘s Brief at 17-20. By statute, Congress has vested in the Attorney General, not the Board, the authority to rule upon legal questions arising under the immigration laws. See
On this basis, the Board simply declared in ipse dixit that it found “unpersuasive” the conclusion of the Ninth Circuit in Cabasug. Board Opinion at 6.
Apart from the merits of the Board‘s decision, the respondent errs in his contention that the Attorney General cannot serve as an impartial decisionmaker in this appeal. See Respondent‘s Brief at 25-27. The respondent correctly notes that one of the Attorney General‘s subordinates—the Solicitor General—has represented the INS in a separate
Although Rivera did involve a deportation proceeding, the application of
As the respondent observes, the court in Rivera did allude to “the well-established policy of the INS . . . to allow deportable permanent resident aliens . . . to seek a waiver under section 212(c),” and, as evidence of this policy, pointed to both the Board‘s decision in Silva and the underlying Second Circuit decision in Francis. Rivera, 791 F.2d at 1204 & n.3. The Fifth Circuit emphasized in Rivera, however, that it “ha[s] never ruled on the validity of the Francis holding.” Id. at 1204 n.3 (citing Byus-Narvaez v. INS, 601 F.2d 879, 881 n.5 (5th Cir. 1979), and Sierra-Reyes v. INS, 585 F.2d 762, 763 (5th Cir. 1978)). The court did not make such a ruling as part of its decision in Rivera. Even had the Fifth Circuit adopted Francis as the law of that jurisdiction, such a holding would not control the present appeal. As I have explained, the Board‘s decision here
This remains true under the 1990 Act. See supra note 1. Section 545 of the 1990 Act enacts a new INA section 242B(e)(5)(A) under which an alien who fails to appear for his deportation proceeding shall be ineligible for 5 years for discretionary relief, including “relief under section 212(c).” This new section 242B appears to rest upon the assumption that
Section 511(a) of the 1990 Act adds a second sentence to INA section 212(c) stating that the discretionary relief provided thereunder “shall not apply to an alien who has been convicted of an aggravated felony and who has served a term of imprisonment of at least 5 years.” In describing a forerunner of this provision, the Senate section-by-section analysis noted that “[s]ection 212(c) provides relief from exclusion and by court decision from deportation . . . . This discretionary relief is obtained by numerous excludable and deportable aliens, including aliens convicted of aggravated felonies . . . .” 136 Cong. Rec. S6604 (daily ed. May 18, 1990). This statement from the legislative history is consistent with my disapproval of the Board‘s decision here, as my opinion leaves in place the line of administrative and judicial decisions through Granados that applies
In a 1987 notice of proposed rulemaking announcing changes to other subsections of
Were the Board ever to retreat from Silva, the INS still would need to maintain a regulation to govern the application of
If the ground for deportation asserted in this case had been other than illegal entry, remand might have been necessary to permit the respondent to seek an adjustment of status under