MATTER OF JUAREZ
A-29993357
Board of Immigration Appeals
June 20, 1991
Interim Decision #3154
(2) The protection against the execution of an order of deportation afforded by section 210(d) of the Immigration and Nationality Act,
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
ON BEHALF OF RESPONDENT:
Lee Salas, Esquire1
Salas & McCarthy
1715 Avenue K, Suite 203
Plano, Texas 75074
ON BEHALF OF SERVICE:
Robert T. Burton
General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated May 21, 1990, an immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act,
The Order to Show Cause and Notice of Hearing (Form I-221) was issued against the respondent on January 22, 1990. The Order to Show Cause alleges that the respondent entered the United States without inspection near Del Rio, Texas, on or about January 21, 1990. At the hearing, the respondent testified that even though he had a special
On appeal, the respondent contends that he may not be deported because his temporary resident status has not been revoked.2 See section 210(a)(3)(A) of the Act,
The record indicates that the respondent has been granted lawful temporary resident status pursuant to section 210(a)(1) of the Act (SAW provisions) and that such status was granted prior to the respondent‘s entry without inspection on January 21, 1990, and the issuance of the Order to Show Cause on January 22, 1990. We note, however, that no documentary evidence corroborating the grant of this status or the date such status was granted was presented at his deportation proceedings. At the hearing, counsel for the Service stated that the respondent‘s temporary resident status had not been terminated. For purposes of this decision, we will assume the truth of the respondent‘s claims that he was granted temporary resident status pursuant to section 210(a)(1) of the Act, that such status was granted prior to his last entry into the United States without inspection and the issuance of the Order to Show Cause,3 and that such status has not been terminated.
There are two fundamental questions which must be resolved in this case. The first question that arises is whether the Service is required to
The statutory provision concerning the termination of temporary residence at section 245A(b)(2) of the Act and the federal regulation implementing the termination procedure at
(A) During the period of temporary resident status granted an alien under paragraph (1) [special agricultural worker provisions], the Attorney General may terminate such status only upon a determination under this Act that the alien is deportable.
(B) Before any alien becomes eligible for adjustment of status under paragraph (2), the Attorney General may deny adjustment to permanent status and provide for termination of the temporary resident status granted such alien under paragraph (1) if—
(i) the Attorney General finds by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation as set out in section 212(a)(19),4 or
(ii) the alien commits an act that (I) makes the alien inadmissible to the United States as an immigrant, except as provided under subsection (c)(2), or (II) is convicted of a felony or 3 or more misdemeanors committed in the United States.5
The respondent in the instant case is deportable as an alien who entered the United States without inspection under section 241(a)(2)
In accordance with the statutory provisions for the termination of temporary residence, the Service has promulgated a regulation providing for the termination of an alien‘s temporary residence which is codified at
(1) The temporary resident status of a special agricultural worker is terminated automatically and without notice under section 210(a)(3) of the Act upon entry of a final order of deportation by an immigration judge based on a determination that the alien is deportable under section 241 of the Act.
(2) The status of an alien lawfully admitted for temporary residence under section 210(a)(2) of the Act,6 may be terminated before the alien becomes eligible for adjustment of status under § 210.5 of this part, upon the occurrence of any of the following:
(i) It is determined by a preponderance of the evidence that the adjustment to temporary resident status was the result of fraud or willful misrepresentation as provided in section 212(a)(19) of the Act;
(ii) The alien commits an act which renders him or her inadmissible as an immigrant, unless a waiver is secured pursuant to § 210.3(e)(2) of this part;
(iii) The alien is convicted of any felony, or three or more misdemeanors in the United States.
(3) (i) Termination of an alien‘s status under paragraph (d)(2) of this section will be made only on notice to the alien sent by certified mail directed to his or her last known address, and to his or her representative . . . .
(ii) Termination proceedings must be commenced before the alien becomes eligible for adjustment of status under § 210.5 of this part. The timely commencement of termination proceedings will preclude the alien from becoming a lawful permanent resident until a final determination is made in the proceedings, including any appeal.7 (Emphasis added.)
Even though
Therefore, our review of the provisions concerning the termination of temporary resident status granted to an alien as a special agricultural worker under section 210 of the Act, as well as the regulation implementing the termination procedure, leads us to the conclusion that the Service is not required to terminate, as a condition precedent to the commencement of deportation proceedings, the lawful temporary resident status of an alien who commits a deportable offense after he has acquired temporary residence in this country and who is subject to a final order of deportation by an immigration judge based on a determination that the alien is deportable under section 241 of the Act for this deportable offense. However, we further conclude that where termination of the temporary resident status granted an alien as a special agricultural worker is sought based on one of the enumerated grounds set forth in section 210(a)(3)(B) of the Act and there is no determination under the Act that the alien is deportable, the Service must comply with the notice and procedural requirements set forth in
Accordingly, in the case before us, the immigration judge properly proceeded with the deportation hearing even though the record indicates that the respondent‘s temporary resident status as a special agricultural worker had not been terminated prior to the commencement of deportation proceedings because the respondent had been found deportable under section 241(a)(2) of the Act for entry without inspection after he acquired the temporary resident status.
The second question that is raised in this case is whether the Service may deport the respondent pursuant to the order of deportation entered against him. The respondent cites section 210(d)(2) of the Act in support of his argument that he cannot be deported until a final determination on his application for adjustment of status as a special agricultural worker has been completed. Initially, we note that, as with all orders of deportation, no alien may be deported until the order of deportation becomes final. See section 242 of the Act,
Section 210(d)(2) of the Act specifies that a stay is provided “in the case of an alien who presents a nonfrivolous application for adjustment of status under subsection (a) during the application period, and until a final determination on the application has been made.” The respondent‘s application was completed when he was granted temporary resident status as a special agricultural worker. Any adjustment to permanent resident status is not by application but occurs as a matter of course according to a time schedule set forth in section 210(a)(2) of the Act. See
We therefore conclude that the protection against the execution of an order of deportation afforded by section 210(d) of the Act does not apply to an alien who has been granted temporary resident status, who commits a deportable offense after acquiring such status, and who is subject to a final order of deportation by an immigration judge based on a determination that the alien is deportable for such offense under section 241(a) of the Act.
We further find that on the record before us, the respondent has no apparent eligibility for any relief from deportation. The respondent has made no application for relief.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.