MONTENEGRO
(2) Matter of Meza, 20 I&N Dec. 257 (BIA 1991), is limited to the question of eligibility for section 212(c) relief in the case of a conviction for a drug-trafficking aggravated felony and is based on the specifiс amendment to section 212(c) regarding aggravated felonies; it does not alter the general rule represented in Matter of Wadud, 19 I&N Dec. 182 (BIA 1984), and Matter of Granados, supra, and reaffirmed in Matter of Hernandez-Casillas, supra, that section 212(c) relief is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of excludability.
In a superseding order dated March 30, 1992, the immigration judge found the respondent deportable as charged under section 241(a)(2)(C) of the Immigration and Nationality Act,
The respondent is a native and citizen of Guatemala who was admitted into the United States on October 29, 1979, as a nonimmigrant visitor for pleasure. On June 24, 1984, his status was adjusted to that of a lawful permanent resident. On January 18, 1989, the respondent was convicted of voluntary manslaughter and assault with a firearm, in violation of California Penal Code sections 192(a) and 245(a)(2), respectively. At the hearing before the immigration judge the respondent conceded deportability under section 241(a)(2)(C) of the Act, based on the conviction for assault with a firearm. He does not, and indeed could not, contest deportability on appeal. See Matter of Roman, 19 I&N Dec. 855 (BIA 1988). Deportability has been established by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966);
On appeal the respondent contends that the immigration judge failed to consider the trial brief submitted in support of his claim of eligibility for a waiver under section 212(c) of the Act, and that he was therefore denied due process and a fair hearing. In addition, the respondent reasserts his claim that he is eligible for section 212(c) relief and is deserving of a grant of the waiver in the exercise of discretion. Inasmuch as we have reviewed the record on a de novo basis, the respondent has not suffered any prejudice due to the immigration judge‘s alleged failure to consider all of his arguments in favor of his request for relief under section 212(c) of the Act. Cf. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).
The decision of the Attorney General in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff‘d, 983 F.2d 231 (5th Cir. 1993), reaffirmed the Board‘s holding in Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff‘d, 624 F.2d 191 (9th Cir. 1980), that a section 212(c) waiver is availablе in deportation proceedings only to those aliens who have been found deportable under a charge of deportability for which there is a comparable ground of excludability. See also Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988); Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Salmon, 16 I&N Dec. 734 (BIA 1978). This Board and all immigration judges are strictly bound by the determinations of the Attorney General because our jurisdiction and authority derive from his. See
We nonetheless find it appropriate to address one of the respondent‘s contentions more specifically. The respondent contends that his conviction for assault with a firearm, for which he was found deportable under section 241(a)(2)(C) of the Act, would also render him excludable under section 212(a)(2)(A)(i)(I) of the Act (previously 212(a)(9)), for having been convicted of a crime involving moral turpitude, and that section 212(a)(2)(A)(i)(I) of the Act should therefore be considered a comparable ground of exclusion for purposes of section 212(c) eligibility. In support of this assertion the respondent cites Matter of Meza, 20 I&N Dec. 257 (BIA 1991).
This is the type of claim considered and rejected in Matter of Wadud, supra. In Wadud the respondent was charged with and found deportable under sectiоn 241(a)(5) which has no comparable enumerated ground among those specified in section 212(c). The respondent argued, however, that because his conviction involved moral turpitude, he would come within the scope of section 212(a)(9) were he to apply for admission to this country, and that he should therefore be considered eligible for section 212(c) relief. Matter of Wadud, supra, at 185. Upon considering the respondent‘s position, the Board specifically “decline[d] to expand the scope of section 212(c) relief in cases where the ground of deportability charged is not also a ground of inadmissibility.” Id. Similarly, the respondent‘s argument in this case relative to crimes involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act must be rejected; section 212(c) cannot waive the charge of deportability under section 241(a)(2)(C) in the instant case because section 241(a)(2)(C) has no analogous ground of inadmissibility enumerated in section 212(c) of the Act.
Contrary to the respondent‘s contention, our decision in Matter of Meza, supra, did not expand the general holding represented in Matter of Wadud, supra, and Matter of Granados, supra. In Meza we addressed the unique situation created by the language and legislative history of an amendment to section 212(c) by section 511 of the Immigration Act of 1990, 104 Stat. at 5052, which indicаted that some aggravated felons are eligible for a section 212(c) waiver in deportation proceedings even though there is no single comparable ground of exclusion based on conviction of an aggravated felony. Matter of Meza, supra, at 3.1 Based on the implications of this language and history we found that “a waiver under section 212(c) is not unavailable to an alien convicted of an aggravated felony simply because there is no ground of exclusion which recites the words, ‘convicted of an aggravated felony,’ as in section 241(a)(4)(B) of the Act.” Id. at 3-4. We noted that the definition of “aggravated felony” at section 101(a)(43) of the Act,
CONCURRING OPINION: Michael J. Heilman, Board Member
I respectfully concur.
It is unfortunate that the respondеnt conceded deportability under section 241(a)(2)(C) of the Immigration and Nationality Act,
On appeal, rather than addressing his concession of deportability, the respondent argues that the assault cоnviction is also a crime involving moral turpitude comparable to section 212(a)(2)(A)(i)(I) of the Act and is thus a conviction which may be waived. I agree with the majority that this argument is not persuasive. Under the immigration law, a number of offenses may fall into more than one ground of deportability. Some examples would be a drug offense, which could be charged as an aggravаted felony or a controlled substance violation, or a murder, which could be charged as a crime of moral turpitude or an aggravated felony. The only issue confronting an immigration judge or this Board in such a case would be whether the charge is proven by the Service, not whether the Service might have alleged a different ground of deportability.
In this case, however, I believe that there are strong reasons to continue to categorize assault with a firearm solely as a crime of moral turpitude, rather than to characterize it as having a dual nature, as also constituting a firearms offense. The essence of an assault charge is the harm inflicted upon a fellow human being, the moral opprobrium associated with injuring another person. Firearms violations, on the other hand, are often in the category of regulatory offenses, particularly those relating to the possession of handguns.
To characterize a conviction for assault with a firearm as a violation of a firearms law would be to depart from 50 years of precedent with no good justification. In a line of cases beginning with Matter of R-, 1 I&N Dec. 209 (BIA 1942), and extending to Matter of Danesh, 19 I&N Dec. 669 (BIA 1988), this Board has consistently and logically treated a
The Attorney General, in an opinion rendered some 60 years ago, stated:
The above-quoted portion of the decree of the Italian court shows that the alien has been convicted of the crime of wilfully assaulting and seriously injuring another by shooting him with a pistol. Judging from this crime by the standards prevailing in the United States, as those standards have been announced in the decisions of our courts, it is one involving moral turpitude. According to those standards any crime which involves an act intrinsically and morally wrong and malum in se, or an act done contrary to justiсe, honesty, principle, or good morals, is a crime involving moral turpitude and applying this rule, our courts have held that a wilful assault with a dangerous weapon involves moral turpitude.
In the Matter of G-R-, 2 I&N Dec. 733, 734 (BIA 1946; A.G. 1947) (citations omitted) (quoting 39 Op. A.G. 95, 98 (1935)).
By contrast, a firearms violation, as set forth in section 241(a)(2)(C) of the Act lists the following offenses:
Certain Firearms Offenses.— Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for salе, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) is deportable.
None of these offenses requires, or alludes to in the slightest manner, any evil intent on the part of the offender, or any element of injury to any other person.
If we take the position that any criminal offense that refers to a firearm is a firearms offense, then offenses other than assault would also be in the firearms category. The commission of a burglary while armed, or a rape while armed, would also place an alien within the firearms provision. These latter offenses have been treated as crimеs of moral turpitude as well, because their essence is the depravity or vileness they exhibit. The moral condemnation comes from the act of burglary or rape, not the fact that the criminal had a gun in his pocket.
It is obvious that it would be convenient for the Service, immigration judges, and this Board if an assault with a firearm were treated as a firearms offense wherе the respondent might otherwise seek a waiver under section 212(c) of the Act. Under the Attorney General‘s decision
As the respondent correctly pointed out at the hearing below, firearms convictions are grouped in a separate section of the California criminal code. Crimes such as assault and homicide have their own sections. The assault provision under which the respondent was convicted seems to categorize offenses by the type of victim and of the weapon used and then proceeds to set different levels of punishment. In some state criminal codes, the severity of sentence is the subject оf so-called enhancement provisions, with severity of punishment differing by type of weapon used. See Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992). We will see, therefore, that an individual convicted under a state code such as this will have committed a firearms violation, but in another state, where the criminal statute itself does not refer to “firearm,” but reserves that reference to a sentencing statute, the individual will hаve been convicted of an assault only. The individuals may have committed identical offenses and drawn identical sentences, yet one will be barred from eligibility for a waiver, while another will not.
Before this Board or anyone else jettisons 50 years of established precedent, there should be serious consideration given to the consequences. First of all, abаndoning this precedent is unnecessary. The amended language of the firearms provision does not oblige us to alter our long-standing interpretation. We have no legislative history to guide us, and the amendatory language does not clearly chart a new interpretation.
Secondly, we are not confronted with a situation where the respondent is off scot-freе if he is charged with deportability for having committed a crime of moral turpitude. He would be able to apply for a waiver, but would have to show that it was warranted. We can thus state with confidence that sticking with our long-standing interpretation will not result in some outrageous or absurd result.
Thirdly, I have serious doubts about characterizing an assault with a firearm as a firearms violation where the respondent may also apply for asylum and withholding of deportation. At a minimum, we will have to distinguish “turpitudinous” firearms violations from those
As a fourth matter, we will be expanding the already embarrassing absurdity which confronts us with section 212(c) waivers. The most egregious types of criminal acts may be waived, but the least harmful may result in deportation or exclusion. Surely, we should take into account the fact that a firearms violation is often a lesser included offense, or presented as part of a plea bargain in a state court. We thus have the incongruous result that as a state charge is diminished, the immigration consequences become more severe. Here, for example, murder was charged and the respondent was found guilty of voluntary manslaughter and assault with a firearm. If he had been found guilty of murder or manslaughter alone, he would be eligible for a section 212(c) waiver. Surely, such illogical and unfair results breed justifiable contempt for the immigration laws, which hardly rank high in public estimation as it is.