SILVA-RODRIGUEZ
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
The record reflects that the respondent is a native and citizen of Mexico, who was admitted to the United States on May 8, 1970, as a lawful permanent resident. On February 7, 1989, he was convicted of delivery of a controlled substance in the 168th District Court of El Paso County, Texas. As a result, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S), charging the respondent with deportability pursuant to the grounds set forth above.
At his deportation hearing, the respоndent conceded deportability and applied for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act,
The Service has filed an interlocutory appeal with respect to the immigration judge‘s ruling. In particular, it cites to our decision in Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA 1988), and argues that the immigration judge was without authority to order such a continuance. For his part, the respondent, through counsel, seeks to distinguish that precedent from the facts of this case.
As a primary matter, we point out that the Board does not ordinarily entertain interlocutory appeals. See Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991). However, we have on occasion ruled on the merits of interlocutory appeals where we deemed it necessary to address importаnt jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the handling of cases by immigration judges. Id. We find that the Service‘s interlocutory appeal satisfies this criteria.
Turning to the merits of the issue before us, we note that in Matter of Garcia-Reyes, supra, we held that an immigration judge should not grant, sua sponte, a 6-month continuance so as to enable an alien to show rehabilitation, where there was no evidence that the alien was eligible for any form of reliеf for which rehabilitation would be relevant. Id. at 832. We acknowledge the accuracy of the respondent‘s appellate observation that, in contrast to Matter of Garcia-Reyes, rehabilitation is an integral part of the relief which he seeks in the matter at hand, i.e., a section 212(c) waiver. See, e.g., Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). Nevertheless, under the circumstances of this case, we are not persuаded by the respondent‘s attempt to distinguish Matter of Garcia-Reyes.
Specifically, in that decision, we additionally relied upon the fact that the 6-month continuance granted by the immigration judge appeared to be inconsistent with section 242(i) of the Act,
With regard to the immigration judge‘s apparent justification for the continuance in this matter, we acknowledge that confined aliens and those who have recently committed criminal acts will have a more difficult task in demonstrating rehabilitation than aliens who have committed the same оffenses in the more distant past. See Matter of Marin, 16 I&N Dec. 581, 588 (BIA 1978). In any case involving discretionary relief, the timing of the issuance of an Order to Show Causе by the Service can have a significant effect on the circumstances relevant to the exercise of disсretion. Id. at 589. However, this fact alone does not mandate that proceedings should be delayed so as to affоrd an alien a better opportunity to prove rehabilitation. Id.
Finally, we consider that, in essence, the immigration judge conditionally granted a section 212(c) waiver in this case. In particular, he stated that he would award that relief if, аt the end of a year, he was convinced that the respondent had avoided further wrongdoing. We note, however, that there is no authority for the provisional grant of a waiver of inadmissibility. See Matter of Przygocki, 17 I&N Dec. 361 (BIA 1980).
While we are sympathetic to the desire of the immigration judge to fashion a fair result in this matter, the 1-year continuance was without “good cause.” See
ORDER: The record is remandеd to the immigration judge for further proceedings consistent with the foregoing opinion.