In the Matter of S

Board of Immigration AppealsMar 15, 1955
6 I&N Dec. 392 (B.I.A. 1955)

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Decided by Board November 24, 1954. Approved by Attorney General March 15, 1955.

Permission to return to unrelinquished domicile — Section 212 (c) of Immigration and Nationality Act — May be exercised in behalf of deportable alien.

The fact that the status of a person lawfully admitted for permanent residence may have changed by reason of his subsequent deportability does not preclude the exercise of the discretionary authority contained in section 212 (c) of the Immigration and Nationality Act, notwithstanding the definition contained in section 101 (a) (20) of the act.


Warrant: Act of 1952 — Section 241 (a) (1) — Convicted prior to entry, to wit: Petit Larceny.


(November 24, 1954)

Discussion: This case is before us on appeal from an order entered by the special inquiry officer on April 26, 1954, denying an application for the relief provided by section 212 (c) of the Immigration and Nationality Act, but granting voluntary departure with the provision that if the alien fails to depart as required, he is to be deported on the charge contained in the warrant of arrest.

These are the facts. The respondent is a 58-year-old married male, a native and citizen of Spain. He was lawfully admitted to the United States for permanent residence on October 11, 1917. Thereafter, he was temporarily absent from the United States three times, effecting reentries on June 12, 1923, January 30, 1950, and October 6, 1952. The respondent has been convicted of the crime of petit larceny on four different occasions-May 3, 1935, August 1, 1935, October 24, 1935, and January 23, 1936, the amounts involved being fifty cents, twenty cents, twenty cents, and twenty-five cents, respectively. The respondent was married in Cuba to a citizen of Spain on October 1, 1952, and has a child born since then in Cuba. The spouse and the child reside in Cuba. The respondent testified that he sends them approximately $100 per month for their support. He is employed as a pantryman, earning about $60 per week. In addition to the four convictions noted above which form the basis for the alien's deportability, he was also convicted on February 17, 1933, and on September 30, 1937, on the charge of unlawfully operating a coin box receptacle. In March 1945 he was arrested on a charge of gambling and sentenced to pay a fine of $250 or serve 90 days in jail. He served the 90-day sentence. A check of local and Federal records reveals no arrests or convictions other than as above stated. Inquiry has failed to disclose any subversive activities on the part of the respondent.

The issues to be decided by us are (1) do we have the authority to accord the relief requested; and (2) if so, should we exercise it favorably in the respondent's behalf.

Section 212 (c) of the Immigration and Nationality Act (1952) provides as follows:

(c) Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraph (1) through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211 (b).

The act of 1917 contained a similar provision in the 7th Proviso to section 3. It was there provided:

That aliens returning after a temporary absence to an unreliquinshed United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.

By comparing the provisions in these two acts, it is patent that the 1952 act limited the areas in which the relief in issue may be granted in two respects-(1) lawful admission for permanent residence became a specific requirement; and (2) the relief could no longer be given unless the alien left voluntarily and not under an order of deportation.

Since the respondent in this case did enter the United States lawfully for permanent residence in 1917 and his temporary absences were voluntary, he appears at least at first blush to be eligible for section 212 (c) relief to the same extent as he would have been eligible for the 7th Proviso relief under section 3 of the 1917 act.

It is beyond the realm of dispute that we possessed the power to exercise 7th Proviso relief in favor of this alien. What hinders us from invoking section 212 (c) relief in his behalf? There is one hurdle and we now address ourselves to that problem. The term "lawfully admitted for permanent residence" employed in section 212 (c) is a defined term. The definition is set forth in section 101 (a) (20) as follows:

The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

The Immigration and Naturalization Service holds that once an alien is rendered deportable, his status has changed from an alien lawfully admitted for permanent residence to an alien illegally in the United States and he may not be granted relief under section 212 (c). Under this interpretation, the relief announced in section 212 (c) may not be exercised in any deportation proceeding. It likewise may not be invoked in exclusion proceedings in which it is found that a charge is involved under which the alien was deportable prior to his departure, whether deportation proceedings were instituted or not. And carried to its logical conclusion, it could likewise mean that we should not exercise that relief in any exclusion proceeding, as by leaving the United States an alien who thereby becomes inadmissible, no longer has a lawful status to which he may return.

It is axiomatic that a statute should receive a sensible construction, such as will effectuate the legislative intention, and if possible, so as to avoid an unjust or an absurd conclusion ( Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892); Ozawa v. United States, 260 U.S. 178, 194 (1922); United States v. Kirby, 7 Wall. 482, 478 (1869)).

Yet the Service position would prohibit entirely the exercise of section 212 (c) relief nunc pro tunc and would limit its advance and simultaneous application to charges which form grounds for exclusion and which at the same time are not or were not bases for deportation. Although not urged by the Service, logically the Service view could bar the exercise of section 212 (c) relief in all cases. Does the legislative history of the act demand this result? Does the language of the statute require it?

We should bear in mind that 7th Proviso relief has been accorded to aliens in deportation proceedings for many years (In the Matter of L----, 1 IN Dec. 1, decided by the Board August 29, 1940, approved by the Attorney General). The fact that such authority was being exercised in these proceedings was well known to the legislators. The Senate Judiciary Committee's comprehensive study which preceded the 1952 act, Senate Report No. 1515, 81 st Congress, 2d session, reviewed prevailing practices under the 7th Proviso and made certain recommendations. They noted that the 7th Proviso had been administratively exercised in behalf of an alien who originally entered the United States on a passport fraudulently obtained, passport to which the alien was not entitled, as a deserter, with a fraudulently obtained visa, with a forged visa or without a visa — and expressed disapproval of these practices. They observed that the 7th Proviso had been favorably exercised in behalf of an alien who had been deported from the United States, and recommended that this be changed in the new law to forbid the exercise of relief in such cases. They recorded that an alien who had proceeded abroad had been permitted to add the period of his residence abroad to the period of his residence in the United States in order to accumulate seven years residence in the United States, and expressed their dissatisfaction with this device. Their recommendations are trenchantly stated on page 384 of the Report:

The subcommittee recommends that the proviso should be limited to aliens who have the status of lawful permanent residents who are returning to a lawful domicile of seven consecutive years after a temporary absence abroad. They must have proceeded abroad voluntarily and not under an order of deportation to be eligible for the relief. Furthermore, it is the opinion of the subcommittee that the provision should not be applicable in the case of aliens who are excludable under the law as subversives.

It is likewise worthy of note that in Chapter VI of this Report dealing with "Adjustment of Status," the following is stated:

Legality of status is a matter of degree. Most aliens in this country are here lawfully for all purposes. A few are eligible for reentry documents, but do not have status sufficient for naturalization purposes; a large number are eligible neither for naturalization nor reentry documents, but still are not deportable; and many are subject to deportation, yet eligible to have that status changed without deportation. (Emphasis supplied.)

The Report pointed to various devices whereby there might be an adjustment of status without deportation. As an example of one of the administrative procedures whereby this is accomplished, they noted on page 592 that "under the 7th Proviso to section 3 of the Immigration Act of February 5, 1917, aliens returning after a temporary absence to an unrelinquished United States domicile for seven consecutive years may be admitted in the discretion of the Attorney General and under such conditions as he may prescribe." On pages 609 to 611 the subcommittee made recommendations for continuation of certain practices for adjustment of status and for discontinuance of others. And although no affirmative statement is made that relief such as is set forth in the 7th Proviso should be continued in deportation proceedings, neither is there anything to indicate that the Congress wished it discontinued.

In Senate Report No. 1137, 82d Congress, 2d sess., the Committee on the Judiciary recorded its views on the proposed revision of the immigration and nationality laws. The Senators commented on the provisions of the 7th Proviso to section 3 of the 1917 act and expressed their opinion regarding changes which were to be made under the new law. They expressly noted that under the 1917 act the Attorney General had been exercising 7th Proviso relief even though the alien had never been lawfully admitted to the United States and pointed out that the comparable discretionary authority vested in the Attorney General in section 212 (c) is limited to cases where the alien has been previously admitted for lawful permanent residence and has proceeded abroad voluntarily and not under an order of deportation.

In view of the detailed study given to the 7th Proviso problem, the specificity with which the practices disapproved were enumerated, the notice taken of the use of this relief in deportation proceedings, and the item by item listing of recommendations as to change, it is unthinkable that there would be no expression of disapproval and no recommendation as to change, if the use of 7th Proviso type of relief were to be barred under the new act in all deportation proceedings. Yet there is nothing to indicate that Congress wished to cut off this unique relief in deportation proceedings. It is our conclusion, therefore, that the legislative history of the act does not require the interpretation urged by the Service. On the contrary, in our opinion, it repudiates the suggested construction.

What about the language in the statute? The term "such status not having changed" employed in the definition of "lawfully admitted for permanent residence" in section 101 (a) (20) must still be considered. But in this regard we should recall the admonition of the Supreme Court in Atlantic Cleaners and Dyers, Inc., et al v. United States, 286 U.S. 427, 433:

Where the subject matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed * * *.

It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance.

There is specific provision in section 247 whereby certain resident aliens may have their status adjusted to nonimmigrant status. And it is logical to assume that the Congress, having expressed a serious disapproval of the practice whereby 7th Proviso relief was accorded to aliens who had been admitted to the United States in a nonimmigrant status, wished to make it clear that not only was this type of relief not to be granted to aliens unless lawfully admitted as immigrants, but to emphasize that it was also not to be granted to aliens who thereafter changed their status from that of immigrants to nonimmigrants. It is our conclusion that in order to give effect to the overall legislative design, this is the meaning which must be given to the term "such status not having changed."

The respondent in the instant case has resided in the United States for 37 of the 58 years of his life. His record since 1945 has been without blemish. He is gainfully employed and contributes to the support of his family. He is favorably regarded by his employer and by his neighbors. We feel that he merits the relief which he has requested.

Order: It is ordered that the order of the special inquiry officer be and the same hereby is withdrawn.

It is further ordered that pursuant to the discretion contained in section 212 (c) of the Immigration and Nationality Act, the alien be considered as having been lawfully admitted to the United States for permanent residence at New York, New York, on January 30, 1950, and at Miami, Florida, on October 6, 1952, notwithstanding his inadmissibility on those occasions as one who was convicted of a crime involving moral turpitude, to wit: petit larceny on May 3, 1935, August 1, 1935, October 24, 1935, and January 23, 1936, subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.

It is further ordered that the proceedings be terminated.

Order: The decision and order of the Board of Immigration Appeals, dated November 24, 1954, and certified to me for review, in accordance with section 6.1 (h) (1) (iii) of Title 8 of the Code of Federal Regulations, on November 26, 1954, are hereby affirmed.