A-5473143
Decided by Board July 19, 1956
Permission to return to unrelinquished domicile — Section 212 (c), Immigration and Nationality Act — May be granted where alien remains deportable under the act.
(1) When the discretion contained in section 212 (c) of the Immigration and Nationality Act is used to waive a ground of inadmissibility based upon a criminal conviction, a deportation proceeding cannot thereafter be properly instituted based upon the same criminal conviction unless the Attorney General has revoked the previous grant of the relief.
(2) In the instant case, respondent was convicted in 1947 for importing marihuana in violation of 26 U.S.C. 3234 (a) (1946 ed.). When he last entered the United States on July 15, 1952, he was inadmissible by reason of the narcotic violation (see Matter of V----, 56096/451, 1 IN Dec. 293). As section 212 (c) of the act is being exercised to waive the ground of inadmissibility, the deportation proceedings based on section 241 (a) (1) are terminated, even though the respondent is also amenable to deportation under section 241 (a) (11) of the act.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at entry under 8 U.S.C. 1182 (a) (23) — Convicted of narcotic offense.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.
The respondent is a 66-year-old married male, native and citizen of Mexico, who last entered the United States about July 15, 1952, when he was admitted as a returning resident. He was lawfully admitted for permanent residence on January 29, 1913, and has resided in this country since that time. In 1947 he was indicted for violating 26 U.S.C. 3234 (a) (1946 ed.) in that he imported 142 grains of marihuana without having registered or paid the special tax. Upon his plea of guilty, he was fined $300. He now claims the marihuana was "planted" on him during an argument.
Relying on the fact that a fine of less than $500 was imposed, counsel contends that the respondent is entitled to the benefits of section 4 of the Act of September 3, 1954 ( 8 U.S.C. 1182a, 1952 ed., Supp. II). However, that provision relates to aliens who are excludable under 8 U.S.C. 1182 (a) (9) whereas it is charged that the respondent was excludable under 8 U.S.C. 1182 (a) (23). In addition, a violation of section 3234 (a) of the Internal Revenue Code was punishable under section 2596 of the code ( 53 Stat. 282; 26 U.S.C. 2596, 1946 ed.) by a fine of not more than $2,000 or imprisonment not exceeding five years, or both. Hence, the offense is a felony under 18 U.S.C. 1, and for that reason also is not within the purview of section 4 of the Act of September 3, 1954, supra. The remaining contentions of counsel in his original appeal brief and in his supplemental memorandum are without merit but need not be discussed since our decision will be favorable to the alien.
Apparently the warrant of arrest charges that the respondent was excludable at the time of entry under 8 U.S.C. 1182 (a) (23). Since the special inquiry officer found that the respondent last entered the United States on July 15, 1952, he was not then excludable under the statutory provision mentioned because the Immigration and Nationality Act did not become effective until December 24, 1952. However, he was excludable on July 15, 1952, in accordance with our decision in Matter of V----, 56096/451, 1 IN Dec. 293 (1942), and is now deportable under 8 U.S.C. 1251 (a) (11). We deem it unnecessary to reopen the hearing to lodge the proper charge inasmuch as the authority contained in section 212(c) of the Immigration and Nationality Act ( 8 U.S.C. 1182 (c)) will be exercised and the proceedings terminated.
The respondent has lived in the United States since his lawful admission for permanent residence in 1913, a period of 43 years. The respondent's wife is a legal resident and they have 10 children who were born in the United States. He owns two ranches worth about $35,000. Other than the 1947 conviction, he was arrested on only one additional occasion, that is, in 1932 for intoxication. The special inquiry officer was of the opinion that the case was meritorious but felt impelled to deny relief because, although the exercise of 8 U.S.C. 1182 (c) would waive the ground of excludability, it would still leave the respondent amenable to deportation under 8 U.S.C. 1251 (a) (11).
We believe that if 8 U.S.C. 1182 (c) is exercised to waive a ground of inadmissibility based upon a criminal conviction, a deportation proceeding cannot thereafter be properly instituted based upon the same criminal conviction unless, of course, the Attorney General has revoked the previous grant of relief. Since we agree with the special inquiry officer that the respondent's case is meritorious, we perceive no reason why the authority in 8 U.S.C. 1182 (c) should not be exercised and, when relief has been granted in accordance with the authorization of Congress, it would be clearly repugnant to say that the respondent remains deportable because of the same conviction. The fact that two different provisions of the Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (1) and 8 U.S.C. 1251 (a) (11)) are involved does not alter this result.
Substantially the same situation was present under the 1917 act since section 3 (8 U.S.C. 136, 1946 ed.) provided for the exclusion of aliens convicted of a crime involving moral turpitude and section 19 (8 U.S.C. 155, 1946 ed.) provided for the deportation of aliens convicted of a crime involving moral turpitude prior to entry. Yet in Matter of L----, 56019/808, 1 IN Dec. 1, 6 (1940), the Attorney General said that if the alien had been granted 7th proviso relief at the time he applied for readmission in 1939, he would still be deportable under the literal terms of section 19 but that the action taken under section 3 would be considered as precluding deportation under section 19. In Matter of V----, 56096/451, 1 IN Dec. 293, 296, 298 (1942), we referred to an opinion of former Attorney General Mitchell in 1931 that the 9th proviso to section 3 of the Immigration Act of 1917 was applicable to a class made inadmissible by a separate act of Congress (the act of October 16, 1918) and it was concluded that the 7th proviso could be exercised "to admit with freedom from deportation a narcotic convict." In view of the foregoing, the following order will be entered.
Order: It is ordered that, pursuant to the discretion contained in 8 U.S.C. 1182 (c), the respondent be regarded as having been lawfully admitted to the United States for permanent residence at El Paso, Texas, on July 15, 1952, notwithstanding his inadmissibility at that time as an alien who was convicted on October 10, 1947, of the violation of a law relating to traffic in narcotics, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.
It is further ordered that the outstanding order of deportation be withdrawn and that the proceedings be terminated.