Volume 20 (Page 262)

MATTER OF HERNANDEZ-CASILLAS

In Deportation Proceedings

A-17963863

Decided by Board January 11, 1990

Decided by Attorney General March 18, 1991

(1) In a case referred to him for review under 8 C.F.R. § 3.1(h) (1990), the Attorney General disapproves the decision of the Board of Immigration Appeals holding that a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), should be available to aliens deportable under any ground of deportation except those where there is a comparable ground of exclusion which has been specifically exempted from section 212(c).

(2) The Attorney General concludes that a lawful permanent resident of the United States, who has been found deportable under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1988), for entry without inspection, is ineligible for a waiver under section 212(c) of the Act because there is no ground of exclusion which is comparable to the entry without inspection ground of deportation.

CHARGE:

Order: Act of 1952 -     Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] Entered without inspection

ON BEHALF OF RESPONDENT:     ON BEHALF OF SERVICE:

Barbara Hines, Esquire     Lawrence J. Hadfield

1005 East 40th Street     General Attorney

Austin, Texas 78751

BY: Milhollan, Chairman; Dunne, Board Member. Concurring Opinion: Heilman, Board Member. Dissenting Opinion: Vacca and Morris, Board Members.

    BEFORE THE BOARD

    (January 11, 1990)

In a decision dated March 14, 1986, an immigration judge found the respondent deportable as charged, denied his motion to terminate proceedings, denied his application for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), and denied his application for voluntary departure. The respondent was ordered deported from the United States to Mexico. The respondent has appealed. The appeal will be sustained and the record will be remanded to the immigration judge.

The respondent is a 33-year-old native and citizen of Mexico who was admitted to the United States on July 4, 1967, as a lawful permanent resident. On April 13, 1985, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued against the respondent, alleging that he had entered the United States near Del Rio, Texas, on or about April 13, 1985, without being inspected by an immigration officer. He was charged with deportability under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1982).

At his March 14, 1986, deportation hearing, the respondent, through counsel, denied the allegations in the Order to Show Cause and denied deportability. The Immigration and Naturalization Service introduced into evidence a certified conviction record. The conviction record includes a complaint that the respondent knowingly and willfully entered the United States at a time and place other than as designated by immigration officers. The complaint further states that the respondent was observed entering t he United States by Border Patrol Agents at a point near Del Rio, Texas, by wading the Rio Grande River, and that he was guiding across the river a group of illegal aliens whom he planned to transport to the Austin, Texas, area for a fee of approximately $1,000. The respondent was convicted on his plea of guilty of the offense of entering the United States at a time and place other than as designated by immigration officers. He admitted at the hearing that the conviction record related to him.

At the hearing, the respondent made a motion to terminate his deportation proceedings on the ground that the Service violated Immigration and Naturalization Service Operations Instructions 242.1a(13) by not including an averment on the Order to Show Cause that the respondent was admitted as an immigrant and has not abandoned his residence. 1/ This motion was denied by the immigration judge. 2/ The respondent then applied for a waiver of inadmissibility pursuant to section 212(c) of the Act. An Application for Advance Permission to Return to Unrelinquished Domicile (Form I-191) and supporting documents were introduced into evidence. The respondent made an offer of proof of the testimony he and his wife would give in support of the application. The offer of proof essentially stated that the respondent had been a lawful permanent resident since 1967 and that his United States citizen wife and children would suffer hardship should he be deported.

The immigration judge denied the application for a section 212(c) waiver on the ground that this relief is not available to an alien who is deportable under section 241(a)(2) of the Act for having entered the United States without inspection.

On appeal, the respondent has not challenged his deportability on the entry without inspection charge. However, he does argue that the deportation proceedings should have been terminated because of the violation of Operations Instructions 242.1a(13). We disagree. To begin with, Operations Instructions generally do not have the force of law. They furnish only general guidance for Service employees and do not confer substantive rights or provide procedures upon which an alien may rely. Ponce-Gonzalez v. INS , 775 F.2d 1342 (5th Cir. 1985); Dong Sik Kwon v. INS , 646 F.2d 909 (5th Cir. 1981); Nicholas v. INS , 590 F.2d 802 (9th Cir. 1979); Matter of Ibrahim , 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos , 17 I&N Dec. 215 (BIA 1980). Moreover, the respondent suffered no harm from the omission on the Order to Show Cause. See, e.g. , Nicholas v. INS , supra ; Matter of Santos , 19 I&N Dec. 105 (BIA 1984). It was never disputed that the respondent was a longtime lawful permanent resident of the United States.

The respondent's primary contention on appeal is that he is eligible for section 212(c) relief. The respondent asserts, as he did during the proceedings below, that the Service should lodge a charge against him under section 241(a)(13) of the Act, relating to the smuggling of aliens for gain. Since section 241(a)(13) has a corresponding exclusion ground (section 212(a)(31) of the Act), it is argued that the respondent would be eligible for section 212(c) relief if the additional charge is made. The res pondent cites the case of Marti-Xiques v. INS , 713 F.2d 1511 (11th Cir. 1983), vacated on rehearing , 724 F.2d 1463 (11th Cir.), decided on other grounds , 741 F.2d 350 (11th Cir. 1984), for the proposition that where a respondent is deportable under two grounds arising out of the same incident, section 212(c) permits waiver of an unenumerated ground if a more serious ground is an enumerated ground for the waiver. Finally, the respondent contends that the statute as construed by the immigration judge is unconstitutional and violates the respondent's equal protection rights.

This case affords us an opportunity to address the issue of the availability of section 212(c) to aliens who have been charged with deportability under section 241(a)(2) for entry without inspection, and to other aliens deportable under certain other grounds. At present, a section 212(c) waiver 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 exclusion. Matter of Granados , 16 I&N Dec. 726 (BIA 1979), aff'd , 624 F.2d 191 (9th Cir. 1980); see also Matter of Wadud , 19 I&N Dec. 182 (BIA 1984); Matter of Salmon , 16 I&N Dec. 734 (BIA 1978). This limitation can result in the total unavailability of relief from deportation for longtime resident aliens who, like the present respondent, may not have committed offenses nearly as serious as those of other aliens who are eligible for the section 212(c) waiver. In order to remedy this anomalous situation, we have today decided to extend the availability of section 212(c) to all grounds of deportability except sections 241(a)(6), (7), (17), and (19), which relate to subv ersives and war criminals.

In deciding to change our approach to section 212(c) waivers, we have considered that section 212(c) as currently applied bears little resemblance to the statute as written. 3/ As written, the provision applies only in exclusion proceedings to lawful permanent residents "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." However, the Board has for many years allowed the granting of a section 212(c) waiver in deportation proceedings nunc pro tunc. Matter of M- , 5 I&N Dec. 598 (BIA 1954); see also Matter of Edwards , 10 I&N Dec. 506 (BIA 1963, 1964); Matter of G- A- , 7 I&N Dec. 274 (BIA 1956); Matter of F- , 6 I&N Dec. 537 (BIA 1955); Matter of S- , 6 I&N Dec. 392 (BIA 1954; A.G. 1955). This exception was in keeping with the allowance, as early as 1940, under the seventh proviso to section 3 of the Immigration Act of 1917, which was the predecessor to section 212(c), that relief could be had in deportation proceedings where an alien departed from the United States and returned after the ground of exclusion arose. Matter of L- , 1 I&N Dec. 1 (BIA, A.G. 1940).

In 1976, the availability of section 212(c) relief was significantly expanded when the United States Court of Appeals for the Second Circuit held that a section 212(c) waiver should be available regardless of whether the applicant had ever departed from the United States. Francis v. INS , 532 F.2d 268 (2d Cir. 1976). The court held that "[f]undamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner." Id. at 273. This Board decided shortly thereafter to adopt the approach of the Second Circuit nationwide. Matter of Silva , 16 I&N Dec. 26 (BIA 1976). As former Board Member Appleman wrote in his concurrence in Silva , "[s]ection 212(c) has now been judicially rewritten and is a full deportation relief. . . ."

It is thus evident that section 212(c) has long since been expanded to encompass many aliens not originally contemplated by the statute. We have concluded that the same fundamental fairness/equal protection arguments made in Francis v. INS , supra , can and should be invoked to make section 212(c) relief available to aliens deportable under any ground of deportability except those where there is a comparable ground of exclusion which has been specifically excepted from section 212(c). That is, since a 212(c) waiver is not available in exclusion proceedings to aliens who are excludable as subversives or war criminals, it would not be available in deportation proceedings to aliens deportable under sections 241(a)(6), (7), (17), and (19). 4/ Having made the section 212(c) waiver, a form of relief ostensibly available only in exclusion proceedings, available in deportation proceedings, we find no reason not to make it applicable to all grounds of deportability with the exception of those comparable to the exclusion grounds expressly excluded by section 212(c), rather than limiting it, as now, to grounds of deportability having equivalent exclusion provisions. The two approaches are equally logical and bear equally little resemblance to the st atute as written. Giving a broader application to the waiver, however, has the benefit of alleviating potential hardships to sometimes deserving aliens.

We recognize that this approach is in conflict with prior precedents of this Board. In Matter of Granados , supra , we considered whether section 212(c) should be extended to cover a ground of deportability (conviction for possession of a sawed-off shotgun) which is not also a ground of exclusion. We declined to do this, indicating that to allow it would make section 212(c) relief available to all deportability grounds, including the subversive grounds which were specifically excluded from 212(c). We also made reference to the plain language and legislative history of section 212(c) .

On further contemplation, we find that the rationale of Matter of Granados , supra , is not sufficiently persuasive to prevent the change we now are making. There is no reason why section 212(c) would have to include the subversive grounds which were specifically excluded in the statute itself, and, as we have said, those grounds will not now be included. As to the language and legislative history of section 212(c), we simply find that, given the unusual history of section 212(c), and the long distance already travelled from the "plain language" of that statute, it makes little sense no w to adhere to strict rules of statutory construction. In view of today's decision, we are withdrawing from the decision in Matter of Granados , supra , and from other decisions which likewise limited the availability of section 212(c). See, e.g. , Matter of Wadud , supra , and cases cited therein.

Our new approach to section 212(c) is also somewhat in conflict with a recent decision of the United States Court of Appeals for the Ninth Circuit. Cabasug v. INS , 847 F.2d 1321 (9th Cir. 1988). That case involved an alien deportable under section 241(a)(14) of the Act for possession of a sawed-off shotgun. The court held that that ground of deportability could not be waived by section 212(c). In so holding, the court emphasized the very serious nature of the alien's offense, and the fact that Congress had in various contexts given special treatment to firearms offenses, and especially to those involving sawed-off shotguns. However, the court also concluded that Congress had intended that section 212(c) relief only be available to waive certain grounds of excludability under section 212 of the Act, and that it could not waive a ground of deportability for which there is no "substantially identical" ground for exclusion. Id. at 1326. Inasmuch as the present case does not arise in the Ninth Circuit, however, we are not bound by it here and will not apply Cabasug outside that circuit. We note that we find the court's reliance on congressional intent unpersuasive for the reasons outlined above.

Our decision today is not without support in case law. In Marti-Xiques v. INS , supra , the alien was charged with deportability under section 241(a)(2) for unlawful entry, but also under section 241(a)(13) for smuggling aliens for gain. The latter, having an equivalent under the exclusion statute, was considered a waivable offense under section 212(c). The court allowed the waiver, despite the nonwaivable entry without inspection charge. The court indicated its difficulty with the result if the entry without inspection charge could not be waived:

    While the purpose of the section is to allow forgiveness of offenses that are in many cases not serious enough to constitute grounds for deportation, INS construes the statute to permit forgiveness for the more serious offense, smuggling aliens, but to preclude forgiveness for the less serious offense, entering without inspection.

Id. at 1515. In order to avoid this result, the court held that "where an appellant is deportable under two grounds arising out of the same incident, section 212(c) permits waiver of an unenumerated ground if a more serious ground is an enumerated ground for waiver." Id. at 1516. In a footnote, the court referred to the strange history and interpretation of section 212(c):

    Our holding is somewhat at odds with the literal language of Sec. 212(c), which permits waiver as to enumerated grounds of exclusion. Section 212(c) makes no mention of waiver with respect to grounds of deportation. It also does not mention deportation proceedings. Despite this latter omission, INS interprets Sec. 212(c) to apply in deportation proceedings. Cf. Comment, [ Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act , 47 U. Chi. L. Rev. 771, 774-75 n.19 (1980)] (arguing that section 212(c) should not apply in deportation proceedings). It strikes us as inconsistent for INS, on the one hand, to attribute no significance to Sec. 212(c)'s failure to mention deportation proceedings but, on the other hand, to argue that section 212(c)'s silence regarding grounds of deportation evinces an intent to preclude relief with respect to grounds of deportation that are not one of the enumerated grounds of exclusion. INS cannot have it both ways. If Sec. 212(c)'s failure to mention deportation proceedings generally has no significance, then its omission of any reference to grounds of deportation likewise has no significance.

Id. at 1516 n.5.

As mentioned above, the respondent in this case asks that the Service be required to charge him under section 241(a)(13), and he then urges us to adopt the holding of the court in Marti-Xiques v. INS , supra . We consider that decision to be a piecemeal approach to the problem before us which, if adopted, would likely raise new issues regarding which deportation grounds are "more serious" than others. Moreover, availability of section 212(c) relief under that decision depends upon which charges happen to be made in a case and would result in situations like the one before us, where the alien desires to have a more serious charge of deportability lodged against him, so he can apply for a section 212(c) waiver. Our approach seems a cleaner, simpler one.