Interim Decision #3147 (Part 2)

In reaching our decision today, we have been ever mindful of the fact that section 212(c) is, in essence, a forgiveness statute. It allows longtime lawful permanent residents to make a mistake, and to be forgiven for it in the immigration context, to keep his permanent resident status despite the mistake. It is a generous provision of the law and we believe that today's action is fully in keeping with its generous spirit. Moreover, we have been troubled by the fact that an alien convicted, for example, of a serious drug offense can be statutorily eligible for a section 212(c) waiver, but an alien who makes an unlawful entry into the United States, or one who fails to comply with the law's change of address requirements, 5/ could not establish statutory eligibility for relief. We emphasize that our decision only relates to statutory eligibility, and that, as always, an applicant for a section 212(c) waiver must also show that he merits the relief as a matter of discretion.

Since the immigration judge found the respondent ineligible for relief because of the charge of deportability brought against him, the respondent did not have an opportunity to establish that he was otherwise eligible for the waiver, and deserving of discretionary relief. A remand is therefore necessary to enable the respondent to fully present his application for a waiver under section 212(c) of the Act. Accordingly, the following orders will be entered.

ORDER: The appeal is sustained insofar as it relates to the denial of a waiver under section 212(c) of the Act.

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing decision.

CONCURRING OPINION : Michael J. Heilman, Board Member

I respectfully concur.

This decision to inject some rationality into the section 2l2(c) waiver process is overdue and sorely needed. For almost l3 years, the lawful permanent resident who entered without inspection was in a worse position than a permanent resident who had committed a serious felony under the Board and judicial decisions praised in the dissenting opinion. The lawful permanent resident who entered without inspection was ineligible for the 2l2(c) waiver on the curious ground that there was no "counterpart" to th e entry without inspection provision in section 24l(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § l251(a)(2) (1982), which could translate into some comparable provision found in section 2l2 of the Act, 8 U.S.C. § 1182 (1982).

The dissent makes much of the supposed violation of elementary rules of statutory construction and legislative history by the majority. For substantial reasons, it appears to me that reliance on statutory construction and congressional intent is basically of little assistance, if not completely irrelevant to any useful analysis of the section 2l2(c) waiver.

While the dissent may go back to l953 to point out how this decision departs from previous interpretations, for all intents and purposes, the relevant history of section 212(c) began in l976, with the decision in Francis v. INS , 532 F.2d 268 (2d Cir. l976), whose holding that a section 2l2(c) waiver was available in deportation proceedings, as well as in exclusion proceedings, was adopted by this Board in Matter of Silva , l6 I&N Dec. 26 (BIA l976). The Board apparently adopted the United States Court of Appeals for the Second Circuit interpretation because the Immigration and Naturalization Service had decided, of its own accord, to apply the holding of Francis v. INS , supra , to its own section 2l2(c) adjudications on a nationwide basis. In a concurring opinion, one Board member acknowledged this reason for adoption of the Francis interpretation and stated that "[s]ection 2l2(c) has now been judicially rewritten." Matter of Silva , supra , at 3l.

In the years that followed the decision to make the section 2l2(c) waiver available to lawful permanent residents in deportation proceedings, there were a number of attempts to define the limits of the waiver, and the formula that was finally settled upon by the Board was to limit the applicability of the waiver to deportation offenses which had a "comparable ground" under the exclusion provisions. Matter of Wadud , 19 I&N Dec. 182 (BIA l984); Matter of Granados , l6 I&N Dec. 726 (BIA l979), aff'd , 624 F.2d 191 (9th Cir. 1980). Matter of Granados , supra , stated that unless the waiver was limited to "comparable grounds" of exclusion, the waiver as applied to deportation proceedings would supposedly make that "relief available for all grounds of deportability including the subversive grounds," resulting in a violation of the "plain language or the legislative history of section 2l2(c)." Id. at 728.

In the view of the dissenting members, this transgression has now occurred in the majority's opinion. This transgression, however, occurred l4 years ago in Matter of Silva , supra . If the dissenters were truly concerned with statutory construction and legislative intent, they would have to actually go further than they do: They would have to call for abandonment of the applicability of the section 2l2(c) waiver to deportation proceedings and the overruling of Matter of Silva , supra , and all of the decisions that followed.

Anyone who invokes principles of statutory construction and legislative history in a discussion of section 212(c) at this point cannot present any logical and coherent argument for partial adoption of the waiver to deportation proceedings. As was noted in a recent judicial decision, "On its face, the statute has no application in the case before us." Cabasug v. INS , 847 F.2d 1321, 1324 (9th Cir. l988). That "case" was, as here, a deportation proceeding in which a section 2l2(c) waiver was sought. This is certainly true, as section 2l2(c) in its "clear and unambiguous" language, as the dissent describes it, applies only to a lawful permanent resident who "temporarily proceeded abroad voluntarily" and who is "returning to a lawful unrelinquished domicile of seven consecutive years." No such circumstances exist in this appeal, and this is not an exclusion proceeding .

Since section 2l2(c) is clear on its face, as a general rule of statutory construction, no inquiry into congressional intent would be required, unless the language led to a bizarre or irrational result. See Rector of Holy Trinity Church v. United States , 143 U.S. 457 (1892). No argument has been presented by the dissent that the language of section 2l2(c) requires us to refer to the legislative history of section 2l2(c), but the dissent does so anyway and presents that legislative history as corroboration for its interpretation of congressional intent. That legislative history, however, proves only that the waiver was meant to apply in exclusion proceedings, an elementary fact that provides no useful evidence that barring the waiver to an alien who ente rs without inspection is mandated.

It appears to me that the dissent suffers from the handicap that meets any legal analysis that attempts to limit the coverage of a statutory provision once its most elementary and basic substance has been abandoned. Here, we have the overriding fact that the waiver was meant to waive grounds of exclusion, not deportation. Second, we have the indisputable fact that this limitation has been abandoned by judicial and administrative choice. As the core of this waiver has been jettisoned, any reference to co ngressional intent has become basically irrelevant. Since Congress clearly never intended to provide this waiver to anyone other than an applicant for admission, it could hardly be said to have any intent whatsoever in regard to persons in deportation proceedings.

The dissent, though, does not advocate returning to the actual statute, and applying it solely to applicants for admission in exclusion proceedings. It chooses to limit this waiver so that it is not available to lawful permanent residents who enter without inspection. The legislative history provides no justification for this choice. The statute itself offers no authority for this, either. It is true that the exclusion provisions do not refer to an offense characterized as entry without inspection. T his is hardly a portentous silence, because the offense by its very nature is accomplished by an alien who has entered and cannot be committed by one who has not. An alien in exclusion proceedings is by definition an alien who has not entered the United States and so cannot logically have committed the offense of entry without inspection. That is the reason Congress could not legislate such an offense as a ground of exclusion under section 2l2 of the Act. If Congress could not do so in the only context i t was dealing with, aliens who had left and were seeking admission, no significance can be drawn from the fact that it did not do so.

In addition, the decision the dissent would continue to apply, Matter of Granados , supra , actually and somewhat ironically, fails the dissent's own standards when measured against the statutory construction and legislative intent tests. In Matter of Granados , supra , the stated reason for adopting the "counterpart" test was to insure that the waiver, when applied to deportation proceedings, would not exceed the scope of that applied in exclusion proceedings, in particular, so that it could not waive the so-called "subversive" grounds, which Congress had explicitly exempted from waiver. This was simply a matter of picking and choosing what portions of the statute would be given effect and which would not. Indeed, the clear implication of that decision is that the Boa rd could or would have adopted the interpretation apparently proposed in Matter of Granados , supra , if this overextension had not been feared.

Also, and of no small importance, the assumption underlying Matter of Granados , supra , that an interpretation which could waive a conviction for possession of a sawed-off shotgun would compel waiver of the "subversive" deportation grounds, was entirely bogus, as the majority decision recognizes today. Whether or not there is a "counterpart" exclusion provision for possession of a sawed-off shotgun, or as here, for entry without inspection, there is a "counterpart" provision for the "subversive" exclusion grounds in the deportation provisions. To the extent, then, that one wished to comply with any vestigial congressional intent, once section 2l2(c) had been essentially trashed, one could with complete clarity conclude that Congress did not intend to waive the "subversive" grounds of exclusion and simply parallel that by barring waiver of the "subversive" deportation grounds. With this new approach, one can with confidence avoid according a benefit to categories of aliens Congress clearly did not intend to benefit when it wrote the waiver provision and avoid the supposed pitfall of extending it in the manner Matter of Granados , supra , found so alarming.

No one can know what Congress intended to do in the case of a lawful permanent resident alien who had entered without inspection, because it was not concerned with such an individual in the context of exclusion proceedings, and so the dissent's invocation to congressional intent is the rankest guesswork. And it is guesswork that rather defies plausibility. To adopt the position that a lawful permanent resident is to be deprived of his status because of an entry without inspection is to assume that when confronted with this possibility Congress would treat this person as more despicable and more of a threat to the United States than a drug dealer or murderer, who may apply for a waiver because of "counterpart" exclusion provisions. Or to refer to another provision of the immigration laws, one would have to believe that an entry without inspection is worse conduct than smuggling in a relative or friend for no monetary gain. A lawful permanent resident who does this is not even deportable under section 24l (a)(l3) of the Act. But a long-term permanent resident who goes to Mexico for a weekend, loses or forgets his "green card," whose admission is denied by an immigration inspector, who then crosses the border without inspection to get back to his job and family, is to lose his permanent resident status and be deported.

I would readily concede that very little that has been done in regard to section 2l2(c) in the past l3 years may be justified by reference to statutory construction or legislative intent and would even concede that we are dealing with an administratively and judicially concocted creature. As this is so, it seems to me it is necessary for this concoction to pass some elementary tests of rationality and fairness. The majority approach does this. It allows the section 2l2(c) waiver to be granted to a lawf ul permanent resident alien who has entered without inspection, the most common and most de minimus of the acts which render a person deportable. On the other hand, it bars this waiver to the only persons Congress specifically barred when it first enacted this much-mangled and sorely battered provision.

DISSENTING OPINION : Fred W. Vacca, Board Member

I respectfully dissent.

The respondent in these proceedings was charged with a single ground of deportability, i.e., entry without inspection. His deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), was established at his deportation hearing by clear, unequivocal, and convincing evidence. The immigration judge ordered that the respondent be deported from the United States to Mexico after properly finding that he was statutorily ineligible for any form of discretionary relief.

On appeal, the respondent argues, inter alia, that, as an alien with a record of lawful permanent residence beginning in 1967, he is eligible for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1982). Fortunately for the respondent, but unfortunately for the state of the immigration laws, the majority of the members of the Board of Immigration Appeals agrees with the respondent and thereby sustains his appeal. In so doing, the majority, in one fell swoop, abandons a numb er of Board precedent decisions dating back to 1953 which hold a contrary view of the law. In its decision the majority seeks to justify its erroneous conclusion as to respondent's eligibility for section 212(c) relief by suggesting that its decision was prompted by considerations of "fundamental fairness" and "equal protection." The majority also points to the "forgiveness" purpose of section 212(c) and declares that its decision is "fully in keeping with its [the statute's] generous spirit." While I do not challenge my colleagues' assessment that the purpose of the section 212(c) waiver provision is to forgive, nor do I fault them for their admirable concern for fairness and equality, I must strongly disagree with the majority's cavalier construction of the statute and its blatant disregard for the intent of Congress.

Clearly, the issue before me is whether Congress intended that aliens who are deportable because of an entry into the United States without inspection are within a class that may be eligible under section 212(c) for a waiver of inadmissibility.

Inherent in the process of adjudicating an appeal which raises a question of legislative intent is the necessity for closely examining the specific language of the statute as well as its history. It is only in that way that we can achieve an understanding of the statute's meaning and gain insight into the intent of Congress. Section 212 of the Act applies to the general classes of aliens who are ineligible to receive visas and who are excluded from admission. That section also pertains to various waive rs of inadmissibility. Section 212(c) provides as follows:

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 paragraphs (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).

Under the provisions of this section, the Attorney General or his delegates may, as a matter of administrative discretion, waive one or more grounds of exclusion. There are 33 grounds of exclusion enumerated in section 212(a). Section 212(c) provides that the grounds described in paragraphs (1) through (25) and (30) and (31) may be waived, but that the grounds listed in paragraphs (26) through (29) and (32) and (33) may not be waived. The unwaivable grounds generally affect public safety or national secu rity. The alien seeking a waiver under section 212(c) must establish that he is lawfully admitted for permanent residence, that he temporarily proceeded abroad voluntarily and not under an order of deportation, and that he is returning to a lawful unrelinquished domicile of 7 consecutive years. Before the Attorney General may exercise his discretionary authority, he must be satisfied that the standards set forth by the Congress in the statute have been met. Stated in different terms, the applicant for a waiver of inadmissibility must establish his statutory eligibility for the relief.

To determine congressional intent, I have examined the statute for clarity, preciseness of meaning, absence of ambiguity or vagueness, and certainty of purpose. Upon examination, I find that section 212(c) is well constructed and that its language is clear and unambiguous. There is certainty and preciseness as to which classes of excludable aliens may seek a waiver and which classes may not. Further, the requirements for eligibility for the waiver are set forth expressly in understandable and unambiguo us terms. Without equivocation, I find that section 212(c) is a section of the Act that pertains to exclusion of aliens. The classes of aliens described in section 212(a) are excludable classes. The waivers described in section 212(c) and other subsections of section 212 refer to aliens who are in excludable classes. The grounds of deportability are not in section 212(a). The general classes of deportable aliens are enumerated and described in section 241 of the Act. A comprehensive reading of the Act leads me to the inescapable conclusion that Congress intended that exclusion and deportation proceedings should be separate and distinct proceedings and that the classes of excludable aliens and deportable aliens should also be considered as separate and distinct entities. Accordingly, I find no language, express or implied, in section 212(c) that describes or refers to classes of deportable aliens. Specifically, I find no language, express or implied, in section 212(c) which describes the class of depor table aliens who enter the United States without inspection. If Congress meant to include such a class, it is not apparent from a plain reading of the statute.