SAUNDERS
(2) During the five-year period immediately following an alien‘s adjustment of status under section 245 of the Act, if it appears that the alien was in fact ineligible for that adjustment, the adjustment must first be rescinded in proceedings brought under section 246 of the Act before deportation proceedings can be instituted.
(3) Notwithstanding that the rescission proceedings were timely begun, the Board ordered the deportation proceedings terminated where the notice of intention to rescind was inadequate under
(4) Service motion to reconsider order terminating deportation proceedings, denied.
Before the Board, January 27, 1977
In a decision dated January 30, 1976, the immigration judge found the respondent deportable as charged and ordered his deportation to Great Britain. The respondent has appealed from that decision. The appeal will be sustained.
Shortly thereafter, on November 13, 1974, the Acting District Director sent a letter to the respondent notifying him of his intention to rescind the respondent‘s permanent resident status pursuant to the provisions of
(1) You have been found ineligible under Section 212(a)(23) for two convictions of illegal possession of narcotic drugs or marihuana to receive a visa for entry into the United States.
(2) You have been found ineligible under Section 212(a)(19), for obtaining or procuring a visa or other documentation to enter the United States by fraud or by wilfully misrepresenting a material fact, by not revealing the prior arrests and convictions, at the time you obtained your nonimmigrant visa at the American Embassy in London.
The respondent, who did not receive the letter of November 13, 1974, but learned of the action against him from a friend who received the letter, wrote the Service from Mexico requesting a six-month period within which to depart from the United States. In his letter he stated that he did not deny the allegations made against him. On December 23, 1974 the District Director notified the respondent that his permanent resident status had been rescinded. This letter was returned undelivered to the Service. These deportation proceedings were subsequently instituted against the respondent under
On appeal counsel for the respondent raises three contentions: he argues that (1) under the court‘s decision in Lennon v. INS, 527 F.2d 187 (2 Cir. 1975), the convictions involved here do not subject the respondent to deportation under
The alien in Lennon was convicted under the British Dangerous Drugs Act of 1965. In the present case at least one of the convictions was had under a statute different from that involved in Lennon, namely the Misuse of Drugs Act of 1971, a law which repealed the 1965 Dangerous Drugs Act. Section 28 of the Misuse of Drugs Act, which applies to proceedings against persons charged with possession of marihuana, provides, in pertinent part:
28.—(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof-
(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.
A defendant, then, who can prove lack of guilty knowledge is not guilty under the terms of the statute. Consequently, guilty knowledge is relevant, all that is required under Lennon. Therefore, this case is distinguishable from Lennon. See Matter of Pasquini, Interim Decision 2496 (BIA 1976).
With respect to counsel‘s second contention,
(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 or 249 of the Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an
adjustment of status to such person and cancelling deportation in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act to the same extent as if the adjustment of status had not been made. . . .
In those cases in which section 246 is applicable, its provisions must be complied with before deportation proceedings may be instituted. Matter of V—, 7 I. & N. Dec. 863 (BIA 1956). If, within five years of the alien‘s adjustment of status under section 245, it appears that the alien was ineligible for that adjustment, his permanent resident status must be rescinded pursuant to section 246 before deportation proceedings can be instituted against him.
In the present case, rescission proceedings were instituted against the respondent prior to these proceedings. Counsel, however, has raised a question as to whether the respondent had notice of the procedural safeguards guaranteed him in those proceedings. See generally
In view of the above opinion, we need not address the issue of estoppel.
ORDER: The appeal is sustained; the proceedings are terminated.
Before the Board August 25, 1977
BY: Milhollan, Chairman; Wilson, Maniatis, and Maguire, Board Members. Concurring Opinion by Board Member Appleman.
The Service has moved that we reconsider our decision dated January 27, 1977 sustaining the respondent‘s appeal and terminating the proceedings. The motion will be denied.
In our decision we held that, because five years had not passed since the respondent had his status adjusted to that of a lawful permanent resident under
Ordinarily, the notice of intention to rescind provided the respondent would be sufficient under section 246. See
With respect to the first contention of the Service, it is also argued that Matter of Quan, 12 I. & N. Dec. 487 (Dep. Assoc. Comm. 1967), a case cited in our January 27, 1977, decision, is distinguishable. Reference to our decision will show that Matter of Quan was cited as support for the point that the District Director is not compelled to institute rescission proceedings in every case. His decision is a matter for the exercise of discretion.
The Service also contends that an alien whose status is adjusted under section 245 is not thereby exempt from the exclusion and deportation provisions of the Act. We agree. Relying on Matter of V—, 7 I. & N. Dec. 363 (BIA 1956), we merely held that, during the five years subsequent to the alien‘s adjustment, the adjustment must be rescinded where it appears that the alien was not in fact eligible for the adjustment before deportation proceedings can be instituted against him on the basis of his ineligibility. It is the Service‘s contention that the holding in Matter of V is inapplicable because in the present case, unlike in Matter of V, the ground of ineligibility could have subjected the respondent to deportation prior to the adjustment. We disagree. We are of the opinion that the distinction is not material.
The Service also claims that our holding with respect to the necessity of first rescinding the adjustment before deportation proceeding can
Our decision of January 27, 1977, is correct. The Motion to Reconsider will be denied.
ORDER: Motion to Reconsider is denied.
Irving A. Appleman, Member, Concurring:
Respondent is a 29-year-old native and citizen of Great Britain. He entered the United States as a nonimmigrant visitor in 1973, married a United States citizen on September 27, 1973, and in November of 1973 filed an application for adjustment of status as permanent resident. In his application he disclosed two convictions in England for possession of marijuana, in 1968, for which he received a $50 fine, and in 1973, for which he received a $100 fine. The records of these convictions were presented to the Service adjudicator, after which the application was approved, and on October 1, 1974, his status was adjusted to that of a lawful permanent resident.
On November 13, 1974, an Acting District Director sent a letter to the respondent advising of an intention to rescind the adjustment. The respondent, who at the time was in Mexico, never received this letter, but was advised telephonically of its contents through a friend. On December 23, 1974, a letter notifying the respondent that his permanent resident status had been rescinded was sent to the respondent. It was returned undelivered. At no time did the respondent demand a hearing, under
These deportation proceedings were begun by service of an Order to Show Cause on October 2, 1975. He is charged with deportability under
In our decision of February 4, 1977, sustaining the appeal and terminating proceedings, we noted that the respondent had raised three contentions. The first of these, relating to the Second Circuit decision in Lennon v. INS, 527 F.2d 187 (1975), was ruled on adversely to the respondent, because we are concerned with a different statute than in Lennon. As to the second, we found merit, in the somewhat unusual facts of the case, to the argument that there was doubt whether the respondent had adequate notice of the procedural safeguards guaranteed him under
In the motion for reconsideration now before us, the Service not only argues that there was adequate compliance with notice requirements and due process safeguards in the rescission proceeding, but that, in view of the Attorney General‘s ruling in Matter of S, 9 I. & N. Dec. 548 (1962) the institution of a rescission proceeding was unnecessary.
I
It will be noted that this alien, adjudicated a lawful permanent resident in 1974, would have defenses available to him in a rescission proceeding which are not available to him in these deportation proceedings. An initial consideration would be whether the institution of rescission proceedings was warranted. While rescission may occur, in the literal language of the statute, for “lack of eligibility” alone (
In contrast, in deportation proceedings, if rescission is viewed as a fait accompli, the respondent has lost his favored status as a lawful permanent resident, and the inquiry is limited to the lawfulness of his status before the adjustment occurred—in this case, whether in 1974 he had remained longer as a nonimmigrant than authorized. (
There is no question that the respondent was seriously prejudiced by the failure to have a hearing in the rescission proceedings. The vigor with which the Service resists affording him that opportunity is somewhat startling, given the somewhat unusual facts of the case. It is a fact that the respondent did not receive the letter advising of an intention to rescind. There is considerable question, from this record, what was read to him during the long distance telephone call by his “friend.” Respon
One cannot help question the “compassion” and “understanding” received by this lawful permanent resident, married to a United States citizen, with a United States citizen child, who after complete disclosure of his “crimes,” suddenly gets word, as he erroneously understands it, that his permanent residence has already been taken away and he must leave the country forthwith. In these circumstances I completely concur in that portion of the majority decision which rejects the Service argument that there was adequate compliance with procedural due process requirements in the rescission action. In this connection it is worth noting that the burden the United States bears in a rescission proceeding is the same clear, convincing and unequivocal burden borne in deportation, Waziri v. INS, 392 F.2d 55 (9 Cir. 1968).
II
It is the further contention of the Service that this alien is subject to deportation proceedings in any event, and even without the institution of rescission proceedings, since the ground for deportation existed prior to the adjustment of status. As to this I am in agreement with the majority that the interpretation given the statute by the Attorney General in Matter of S—, 9 I. & N. Dec. 548, (BIA 1962), does not warrant the conclusion the Service urges, but I reach that result for somewhat different reasons.
Matter of S— was an exclusion proceeding. The alien fraudulently obtained an adjustment of status in April 1955, concealing the fact that he had obtained a visa by fraud in 1949. No rescission occurred within five years. Instead, the facts came to light when he attempted to reenter the United States in August 1960, as a lawfully returning resident alien after a visit abroad. The Board held that the passing of the five years operated as a statute of limitation barring exclusion on
What then is the effect and meaning of the five-year limitation in section 246, on rescission of permanent resident status? In this area Matter of S— is somewhat vague, and one can readily appreciate the Service difficulty in applying the provision. The solution the Service offers here, however, is for all practical purposes, to read section 246 out of the statute altogether. I cannot agree that Congress intended section 246 to be that meaningless.
The majority decision points to one instance where section 246 should be applicable, i.e., where deportation (or exclusion) is sought, as here, within the five-year period. This has the virtue of reconciling Matter of S—, as the Attorney General pointed out, with the earlier decision of this Board in Matter of V—, 7 I. & N. Dec. 363 (BIA 1956). In the Attorney General‘s language, in Matter of V— (as here) the rescission procedure, specifically provided to determine the issue of the alien‘s ineligibility for the record of lawful admission, was “available,” the five years not yet having elapsed; whereas in Matter of S— this was not the case. The majority decision thus finds some support in Matter of S—. However, the implication which flows from this is that within the five years a deportation or exclusion proceeding based on a ground rendering the alien ineligible for the adjustment must be preceded by rescission, but that after the five years there need be no compliance with section 246. The difficulty with this is the lack of any reason for such a distinction. On the contrary, why should the alien who had been a lawful permanent resident for more than five years, with correspondingly greater equities, be in a far worse position than one who has resided here for a shorter period of time?
In my opinion section 246 does permit of another interpretation. As to any ground of deportation or exclusion, known and embraced by the grant of adjustment of status, the five-year rule should apply with full force, and operate as a full statute of limitations. As to any ground arising before the grant of adjustment, and not known at the time of adjustment, deportation or exclusion proceedings should lie without regard to rescission and the five-year rule.2 In short, section 245 should be read as a waiver and adjustment of known grounds of disability. As
Applied here, this interpretation clearly dictates the necessity of a rescission proceeding, and for this reason I have concurred in the result reached by the majority. For the reasons set forth in part I of this opinion, this case is best resolved by a swift and merciful termination of the deportation proceedings.