Interim Decision #3147 (Part 4)

BEFORE THE ATTORNEY GENERAL

(March 18, 1991)

The Immigration and Naturalization Service ("INS") has requested that I review the decision of the Board of Immigration Appeals ("the Board" or "BIA") in In re: Joel Hernandez-Casillas , No. A17 963 863 (Jan. 11, 1990) ("Board Opinion"), in which the Board held that a permanent resident alien who left the United States and then reentered illegally must be afforded the opportunity to seek discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act ("INA"). 1/ For the reasons set forth below, I disapprove the Board's decision.

I.

1. The respondent, Joel Hernandez-Casillas, a citizen of Mexico, was admitted to the United States in 1967 as a permanent resident alien. On April 13, 1985, the respondent was arrested by border patrol agents after he reentered the United States by wading the Rio Grande River; the respondent was observed guiding a group of illegal aliens whom he planned to transport to the Austin, Texas area for a fee. See Decision of the Immigration Judge, In the Matter of Joel Hernandez-Casillas , No. A17 963 863 (March 14, 1986) ("Immigration Judge's Opinion") at 1; Board Opinion at 1-2. The respondent was charged with violating 8 U.S.C. § 1325(a), which proscribes entry into the United States "at any time or place other than as designated by immigration officers." See Immigration Judge's Opinion at 1-2. The respondent pled guilty to that charge and was convicted.

2. On April 13, 1985, the INS served the respondent with an order to show cause why he should not be deported pursuant to 8 U.S.C. § 1251(a)(2), which requires the deportation of any alien who has "entered the United States without inspection." Immigration Judge's Opinion at 1. 2/ The respondent contested the order to show cause in a deportation proceeding before an immigration judge. See 8 U.S.C. § 1252(b). In that proceeding, the respondent sought discretionary relief under section 212(c), which states that:

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)-(25), (30), and (31) of subsection (a) of this section.

8 U.S.C. § 1182(c). 3/

By its terms, section 212(c) authorizes the Attorney General, in his discretion, to permit a permanent resident alien to reenter the United States after a brief trip abroad, even though the alien would otherwise come within certain of the statutory grounds for exclusion from this country listed in section 212(a) -- i.e., grounds upon which the INS otherwise must bar an alien from entering the United States. 4/ The only grounds for exclusion for which discretionary relief is unavailable under section 212(c) are those that concern the exclusion of undocumented nonimmigrants, id. § 1182(a)(26), followers of totalitarian ideologies, id. § 1182(a)(27)-(29), and graduates of unaccredited medical schools who "are coming to the United States principally to perform [medical] services," id. § 1182(a)(32). In cases involving exclusion based upon these grounds, the Attorney General has no discretion and must exclude.

3. Although section 212(c) refers only to discretionary relief from grounds for exclusion , the Board, through a series of administrative decisions, has extended section 212(c) to authorize discretionary relief from grounds for deportation as well -- i.e., grounds upon which the INS must remove an alien from this country. In Matter of Granados , 16 I. & N. Dec. 726, 728 (BIA 1979), the Board held that discretionary relief under section 212(c) may be afforded in deportation cases "if [the] ground for deportation is also a ground of inadmissibility [i.e., exclusion]" that may be waived by the Attorney General under section 212(c).

Applying Granados to this case, the immigration judge below denied the respondent's application for discretionary relief under section 212(c), because the ground for deportation asserted here -- illegal entry -- is not also a ground for exclusion made waivable by section 212(c). Immigration Judge's Opinion at 5.

4. On appeal to the Board, the respondent argued that the INS should be required to charge him with aiding another alien to enter the United States illegally -- an offense that is a ground for both deportation and exclusion. See 8 U.S.C. §§ 1182(a)(31) & 1251(a)(13). The respondent further urged the Board to hold that where an alien is deportable under two grounds arising out of the same incident, section 212(c) permits the waiver of a ground not listed therein if the "more serious" ground would be waivable under that section. Board Opinion at 3. 5/

5. The Board concluded that the respondent was entitled to seek discretionary relief under section 212(c), but rejected the respondent's reasoning:

[The respondent's position is] a piecemeal approach to the problem . . . 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 [the respondent's position] 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) w aiver.

Id. at 8. Instead, the Board opted for what it described as a "cleaner, simpler" solution, holding that discretionary relief under section 212(c) is available in all deportation cases, except where the ground for deportation is also a ground for exclusion that the Attorney General may not waive under section 212(c). Id.

The Board described its holding as an extension of the many administrative and judicial interpretations of section 212(c). The Board noted that discretionary relief under section 212(c) has long been available in deportation cases understood by the Attorney General and the Board to be the equivalents of exclusion proceedings. For example, when the INS has inadvertently permitted a permanent resident alien to reenter this country notwithstanding his excludability and, upon discovery of its error, has ini tiated deportation proceedings, the Attorney General and the Board have determined that the alien should not be placed in a worse position than if he had been excluded. In such cases, the Attorney General and the Board have permitted the alien to raise any claim for discretionary relief that the alien otherwise could have raised had he been excluded. See Matter of S-- , 6 I. & N. Dec. 392 (BIA 1954; A.G. 1955); Matter of G-- A-- , 7 I. & N. Dec. 274 (BIA 1956); Board Opinion at 4. 6/

The Board further noted that, since a Second Circuit decision in 1976, relief under section 212(c) has been available in certain deportation proceedings in addition to those considered to be the equivalents of exclusion proceedings. See Board Opinion at 4-5. In Francis v. INS , 532 F.2d 268 (2d Cir. 1976), the Board had entered an order of deportation against a permanent resident alien based upon his conviction in this country for possession of marijuana. Id. at 269. Under the INA, such a conviction is a ground for both deportation and exclusion. See 8 U.S.C. §§ 1182(a)(23)(A) & 1251(a)(11). The Second Circuit framed the issue as follows:

Under present Board interpretations [of section 212(c)], a lawfully admitted alien, convicted of a narcotics offense, who departs from and returns to the United States to an unrelinquished domicile of seven years may be permitted to remain in this country in the Attorney General's discretion. On the other hand, the Attorney General is without discretion to allow petitioner, a lawfully admitted alien convicted of a narcotics offense, to remain in the United States despite an unrelinquished domicile of more than seven years solely because he has never made a temporary departure from this country since the time of his conviction.

532 F.2d at 269. Relying upon the guarantee of equal protection that the Supreme Court has held to be implicit in the due process clause of the Fifth Amendment, see Bolling v. Sharpe , 347 U.S. 497 (1954), the Second Circuit accepted the contention that section 212(c) "creates two classes of aliens identical in every respect except for the fact that members of one class have departed and returned to this country at some point after they became deportable." 532 F.2d at 272. Given that "[t]he government ha[d] failed to suggest any reason" to support this distinction, the court held that section 212(c), as applied, lacked even the rational basis necessary to pass minimal scrutiny under t he Fifth Amendment. Id. at 273. The Board subsequently adopted the Second Circuit's reasoning in Francis , without further elaboration upon the court's equal protection analysis. See Matter of Silva , 16 I. & N. Dec. 26, 29-30 (BIA 1976); Board Opinion at 5. As a result of Francis and Silva , discretionary relief under section 212(c) became available for all grounds for deportation that also are grounds for exclusion made waivable by the terms of that section.

In Matter of Granados , supra , the Board indicated that Francis and Silva represented the limit of its expansion of section 212(c) to deportation cases. The Board noted that " Francis expanded the class of aliens to whom section 212(c) relief is available [ viz ., to deportable aliens who have not temporarily departed from the United States] but did not increase the statutory grounds to which section 212(c) relief may be applied." 16 I. & N. Dec. at 728. Because section 212(c), by its terms, permits the Attorney General to waive only particular grounds for exclusion, the Board reasoned that section 212(c) may not be used to obtain discretionary relief from "a ground of deportation which is not a ground of exclu[sion] listed under section 212(c) . . . ." Id.

In the present case, however, the Board overruled its holding in Granados by reading section 212(c) as if it referred to the grounds for deportation set forth in section 241(a) as well as to the grounds for exclusion listed in section 212(a). The Board reasoned 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 . . . 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) [i.e., those grounds which the Attorney General may not waive] . . . . 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 in 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 statute as written .

Board Opinion at 5 (emphases added). The Board did not base its expansion of section 212(c) upon what it understood to be a constitutional requirement. Cf. supra pp. 5-6 (discussing constitutional holdings of Francis and Silva ).

Applying its new approach to the present case, the Board concluded that the respondent should have been granted the opportunity to seek discretionary relief under section 212(c), because the ground for deportation asserted against the respondent is not a ground for exclusion placed beyond the Attorney General's discretionary powers by section 212(c).

Accordingly, the Board held that the respondent could seek discretionary relief under section 212(c) on remand to the immigration judge. Board Opinion at 5-6, 8.

6. The INS appealed the decision of the Board to me on April 6, 1990. 7/

II.

The INS urges me to reverse the expansion of section 212(c) to deportation cases by giving effect to the plain language of that provision, which refers only to exclusion. INS Referral at 7. Specifically, the INS requests that I disapprove, among other decisions, the Board's holding in Silva , which adopted the Second Circuit's decision in Francis . Id. ; see also supra note 6 (denying INS request for reconsideration of Matter of L-- , Matter of S-- , and Matter of G-- A-- ).

For two reasons, I decline at this time to undertake a reexamination of these precedents and, accordingly, leave for another day the question of whether Silva should be disapproved. First, as the respondent and amici emphasize, and as the record confirms, the INS did not challenge the validity of Silva before the Board. See Respondent's Brief Upon Referral to the Attorney General for Review ("Respondent's Brief") at 20; Brief of Amici Curiae , American Immigration Lawyer's Association and National Immigration Project of the National Lawyers Guild, Inc. (" Amici Brief") at 26-27. As a result, the Board did not discuss this issue in its opinion. In the absence of compelling circumstances, I do not consider it prudent to resolve the validity of Silva without allowing the Board to explore that question in the first instance. Second, I need not reexamine Silva in order to decide the present case for, as I shall explain, even if I assume the validity of Silva , I nonetheless must disapprove the Board's decision here.

I conclude that the Board erred in holding that relief under section 212(c) may be afforded for grounds for deportation that are not grounds for exclusion made waivable by the terms of section 212(c). I reach this conclusion for two related reasons. First, the Board erred in concluding that its holding in Silva and its further expansion of section 212(c) in this case "bear equally little resemblance to the statute as written." Board Opinion at 5. Silva at least remains tied, albeit loosely, to the statutory text, because it permits waivers of only those grounds for deportation that Congress expressly made waivable in the related context of exclusion. Under Silva , therefore, the Attorney General may not waive a ground for deportation if it is not a ground for exclusion at all or if it is a ground for exclusion placed beyond the Attorney General's discretionary powers by the terms of section 212(c). In contrast, under the Board's holding in this case, only the latter limitation would remain. The Board's approach thus would take immigration practice even further from the statutory text, which refers only to grounds for exclusion.

The disruption to the statutory scheme that would be wrought by the Board's expansion of section 212(c) is apparent when one examines the provisions designed by Congress specifically to govern deportation cases. In section 244(a)(1) of the INA, Congress has expressly provided that the Attorney General may, in his discretion, suspend the deportation of an illegal entrant who "has been physically present in the United States for a continuous period of at least seven years," who "proves that during all of s uch period he was and is a person of good moral character," and who "is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship . . . ." 8 U.S.C. § 1254(a)(1). The showings of "good moral character" and "extreme hardship" required under section 244(a)(1) are, by contrast, not required under section 212(c). Extension of section 212(c) to deportation cases thus would further supplant the standard of proof specified by Congress for discretionary relief in such ca ses.

Second, the rationale articulated in Francis and Silva for expansion of discretionary relief under section 212(c) to deportation proceedings apart from those considered the equivalents of exclusion proceedings rests upon the conclusion that the constitutional guarantee of equal protection requires that expansion. Without evaluating the correctness of that conclusion, I am persuaded that the guarantee of equal protection does not require the further departure from the terms of section 212(c) made by the Board in this case.

Under Francis and Silva , the guarantee of equal protection requires, at most, that an alien subject to deportation must have the same opportunity to seek discretionary relief as an alien who has temporarily left this country and, upon reentry, been subject to exclusion. See supra p. 6 (framing of the issue in Francis ). The guarantee of equal protection, as understood by Francis and Silva , thus is satisfied if discretionary relief is available in deportation cases for all grounds that would be subject to waiver under section 212(c) were they asserted against the alien in exclusion proceedings. Under no plausible understanding of equal protection principles must discretionary relief be made available in deportation cases where the ground for deportation could not be waived if asserted in an exclusion case -- or, as here, could not be asserted at all in an exclusion case. Accordingly, the S econd Circuit in Francis and the Board in Silva , by concluding that equal protection principles require deviation from the literal terms of section 212(c), kept such deviations to what they understood as the constitutionally mandated minimum; that is, Francis and Silva require only that discretionary relief under section 212(c) be made available in deportation proceedings in which the asserted ground for deportation is also a ground for exclusion expressly subject to waiver under that section.

The constitutional guarantee of equal protection requires nothing more, as the Board itself concluded in Granados . Since that administrative decision, the constitutional soundness of Granados has been confirmed by the Ninth Circuit -- the only court of appeals to address the question. See Cabasug v. INS , 847 F.2d 1321 (9th Cir. 1988). In Cabasug , the INS ordered a permanent resident alien deported based upon his conviction for a firearm offense. Id. at 1322 (citing 8 U.S.C. § 1251(a)(14)). On authority of Granados , the Board held that discretionary relief under section 212(c) was unavailable, because the particular ground for deportation has no counterpart among the grounds for exclusion. In the face of an equal protection challenge, the court upheld the Board's decision:

[T]here exists no class of persons alike in carrying [the prohibited types of firearms], and deportable or not depending on the irrelevant circumstance of whether at some previous time they took a temporary trip out of the country. The gravamen of the equal protection violation identified in Francis was just such a distinction without a material difference. In the treatment of these weapons offenses, Congress has legislated no such distinction, nor has any administrative practice created one.

Id. at 1326. The same is true of illegal entrants, such as the respondent. Here, deportation turns not upon the "irrelevant circumstance" of whether the respondent has temporarily left the United States but, instead, upon the illegal nature of his reentry. 8/

Although the Ninth Circuit's decision in Cabasug -- holding that the Constitution does not require discretionary relief under section 212(c) to be accorded from a ground for deportation that is not also a ground for exclusion made waivable under that section -- is not controlling of its own force in the present case, I find Ninth Circuit's reading of section 212(c) more persuasive than that of the Board. 9/ In the face of the convincing constitutional analysis in Cabasug , the Board merely asserts that there is " no reason not to make [section 212(c)] applicable to all grounds of deportability." Board Opinion at 5 (emphasis added). 10/ This bald assertion simply is not enough to justify the Board's decision to wrench away even further from the statutory text. Absent some supervening affirmative justification based upon a requirement of the Constitution or other applicable law, neither the Board nor I may depart -- or, in this instance, extend an earlier departure -- from the terms of the statute we are bound to enforce.

Accordingly, I conclude that the Board erred in its unjustified expansion of discretionary relief under section 212(c).

III.

The respondent and amici advance various additional arguments for approval of the Board's decision, but none of these is persuasive. 11/ These arguments were not raised by the respondent before the Board, nor do any of them overcome the errors in the Board's analysis that I have described above.

1. The respondent contends that this case is controlled by the Fifth Circuit's decision in Rivera v. INS , 791 F.2d 1202 (5th Cir. 1986). See Respondent's Brief at 14-16. This contention is incorrect. Unlike the present case, Rivera concerned the standards for calculation of the seven-year period of permanent resident status necessary for an alien to avail himself of section 212(c). 791 F.2d at 1204. 12/ The court rejected the contention of the INS that an alien loses permanent resident status -- and, hence, his eligibility for relief under section 212(c) -- upon the entry of a final administrative order of deportation. Id. at 1204-05. The court relied heavily upon the reasoning of the Board in Matter of S-- , 6 I. & N. Dec. 392 (BIA 1954; A.G. 1955), which had long ago rejected the argument advanced there by the INS on the ground that it would render discretionary relief under section 212(c) completely unavailable in deportation proceedings, even those that should have been exclusion proceedings or that involve an adjustment of status under section 245(a). 791 F.2d at 1205. That the Fifth Circuit also has rejected this sweeping contention does not bear upon the wisdom of the Board's departure from Granados in this case. 13/

2. Both the respondent and amici contend that reexamination of Francis and Silva is foreclosed because Congress has not acted to disapprove those decisions through amendment of section 212(c). See Respondent's Brief at 9-14; Amici Brief at 21-26. Specifically, I am urged to infer that Congress, by amending other provisions of the INA but by failing to revise section 212(c) to disapprove the gloss placed upon that provision, has implicitly acquiesced in the interpretation of section 212(c) by the Board. As noted above, however, I do not here reach the question of the validity of Francis and Silva . Moreover, neither the respondent nor amici marshall evidence suggesting that Congress has acquiesced in the Board's new extension of section 212(c) to grounds for deportation that are not analogous to the grounds for exclusion listed in that section. 14/ As the Ninth Circuit concluded in Cabasug , such an application of section 212(c) is not dictated by the Constitution as interpreted in Francis and Silva and, indeed, takes immigration practice further from the statutory text of the INA.

Moreover, although some Supreme Court opinions suggest a receptiveness to arguments of congressional acquiescence, see, e.g. , North Haven Board of Education v. Bell , 456 U.S. 512, 535 (1982); but see Train v. City of New York , 420 U.S. 35, 45 (1975) ("legislative intention, without more, is not legislation"), the Court, more recently, has squarely rejected such reasoning on the ground that:

[i]t is "impossible to assert with any degree of assurance that congressional failure to act represents" affirmative congressional approval of [a court]'s statutory interpretation. . . . Congress may legislate . . . only through the passage of a bill which is approved by both Houses and signed by the President. . . . Congressional inaction cannot amend a duly enacted statute.

Patterson v. McLean Credit Union , 109 S. Ct. 2363, 2372 n.1 (1989) (quoting Johnson v. Transportation Agency , 480 U.S. 616, 671-72 (1987) (Scalia, J., dissenting)). Accordingly, I reject this second proposed ground for approval of the Board's decision.

3. The respondent contends that the INS must accord him the opportunity to seek discretionary relief under section 212(c) due to an INS regulation that provides:

[a]n application for the exercise of discretion under [section] 212(c) of the Act may be submitted to an immigration judge in the course of proceedings under section[] . . . 242 of the Act [i.e., deportation proceedings] . . . and shall be adjudicated by the immigration judge in such proceedings . . . .

8 C.F.R. § 212.3(d) . See also Respondent's Brief at 16-17. It is, of course, a fundamental principle of administrative law that an agency must follow its regulations in adjudication until those regulations have been duly revised through rulemaking procedures. See generally Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co. , 284 U.S. 370, 389 (1932). This principle of administrative consistency, however, does not support the result urged by the respondent in this case. Here, the INS has not bound itself by regulation to afford aliens the opportunity to seek discretionary relief under section 212(c) in situations such as that in Silva , much less to cases even further from the intended reach of the statute such as the present appeal. The portion of the INS regulation relied upon by the respondent was promulgated in 1958, see 23 Fed. Reg. 141 (1958), when relief under section 212(c) could be sought only in deportation proceedings that should have been exclusion proceedings or that involved an adjustment of status under section 245(a) . The regulation thus was not issued to implement the Board's 1976 decision in Silva , extending section 212(c) to all deportation proceedings in which the asserted ground for deportation is also a ground for exclusion subject to waiver. That extension of section 212(c) was accomplished not through rulemaking but through adjudication -- viz ., Board decisions in particular deportation proceedings -- and, hence, may be undone through a subsequent adjudication such as the present appeal. See generally NLRB v. Wyman-Gordan Co. , 394 U.S. 759, 765-66 (1969) (plurality opinion). 15/

As there is no constitutional justification for a further departure from the statutory text and as neither the respondent nor amici has identified an alternative basis for the Board's decision, I must disapprove the decision of the Board.

CONCLUSION

Accordingly, the decision of the Board is disapproved and the case remanded for further proceedings consistent with this opinion. 16/

FOOTNOTES FOR INTERIM DECISION #3147

1/ Operations Instructions 242.1a(13) provides that if an alien was admitted as an immigrant and has not abandoned his residence, the Order to Show Cause shall contain an averment to that effect.

2/ In denying this motion the immigration judge relied in part on the proposition that an entry without inspection divests an alien of his status as a lawful permanent resident of the United States. This was error. In Matter of Gunaydin , 18 I&N Dec. 326 (BIA 1982), we held that the status of a lawful permanent resident who entered the United States without inspection terminates only when the adjudication of his deportability becomes final in administrative proceedings.

3/ Section 212(c) of the Act provides as follows:

Aliens lawfully admitted for permanent residence whotemporarily proceeded abroad voluntarily and not underan 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).

4/ Section 212(c) is also unavailable to foreign medical graduates. There is no comparable ground of deportation for foreign medical graduates. In any event, such aliens, along with nonimmigrants, would not be eligible for section 212(c) relief because they would not be lawful permanent residents.

5/ See sections 241(a)(5) and 265(a) of the Act, 8 U.S.C. §§ 1251(a)(5) and 1305(a) (1982).

BEFORE THE ATTORNEY GENERAL (March 8, 1991)

1/ While this appeal was pending, Congress enacted the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) ("1990 Act"). The 1990 Act will not affect the conclusions set forth herein, which will retain their general applicability to future cases. The 1990 Act, in particular, does not alter the substantive law that I must apply in this appeal. See id. § 602(d) (reorganization of grounds for deportation in INA § 241(a), 8 U.S.C. § 1251(a), "shall not apply to deportation proceedings for which notice has been provided to the alien before March 1, 1991"). Accordingly, all citations herein are to the INA as it existed prior to enactment of the 1990 Act.

2/ The INS did not charge the respondent with deportability on the ground of aiding another alien to enter illegally. See 8 U.S.C. § 1251(a)(13). Cf. infra p. 3.

3/ Congress took the language of section 212(c) from the Seventh Proviso to section 3 of the Immigration Act of 1917, 39 Stat. 878 (1917), which was intended "as a 'humane' provision 'to permit the readmission to the United States . . . of aliens who have lived here for a long time and whose exclusion after a temporary absence would result in peculiar or unusual hardship," S. Rep. No. 352, 64th Cong., 1st Sess. 6 (1916) (quoting S. Rep. No. 355, 63rd Cong., 2d Sess. 6 (1914)).

4/ Section 212(a) of the INA sets forth thirty-three grounds upon which an alien may be excluded from the United States. 8 U.S.C. § 1182(a). A separate section lists twenty grounds upon which an alien may be deported. Id. § 1251(a). The grounds for exclusion overlap substantially with those for deportation. Compare, e.g. , id. § 1182(a)(9) (exclusion upon prior conviction of crime involving moral turpitude) with id. § 1251(a)(4) (deportation upon conviction of crime involving moral turpitude within five years of entry). The grounds for deportation and exclusion are not identical, however. Some grounds for exclusion have no analogue in the grounds for deportation. See, e.g. , id. § 1182(a)(4), (6), (11) (exclusion based upon sexual deviance, contagious disease, or polygamy). Similarly, two grounds for deportation have no analogue in the grounds for exclusion. See id. § 1251(a)(2) (illegal entry) & (14) (conviction of illegal possession of certain firearms).

5/ The respondent based this argument upon the reasoning in a vacated opinion of the Eleventh Circuit. See Marti-Xiques v. INS , 713 F.2d 1511 (11th Cir. 1983). The alien in Marti-Xiques was convicted of two offenses warranting deportation: entering without inspection, 8 U.S.C. § 1251(a)(2), and knowingly aiding another alien to enter in violation of law, id. § 1251(a)(13). See 713 F.2d at 1513. The alien sought discretionary relief under section 212(c), but the INS denied his application based upon Granados .

Specifically, the INS reasoned that illegal entry was a ground for deportation that has no counterpart among the grounds for exclusion. Accordingly, section 212(c) provided no authority to waive this ground, notwithstanding that the related charge of aiding another alien to enter illegally would have been waivable as a ground for both deportation and exclusion. See supra p. 3. The Board affirmed the INS's decision. 713 F.2d at 1513, 1515.

On review, the Eleventh Circuit reversed, holding that where an alien "is deportable under two grounds arising out of the same incident, Sec. 212(c) permits waiver of an unenumerated ground [i.e., one not listed in section 212(c)] if a more serious ground is an enumerated ground for waiver." Id. at 1516. Upon granting a petition for rehearing, however, the court vacated its opinion, Marti-Xiques v. INS , 724 F.2d 1463 (11th Cir. 1984), and subsequently decided the case in favor of the INS on the ground that the alien had failed to satisfy the seven year residency requirement in section 212(c), Marti-Xiques v. INS , 741 F.2d 350 (11th Cir. 1984).

6/ Both Matter of S-- and Matter of G-- A-- built upon an earlier opinion of Attorney General Jackson, who had accorded similar relief under the predecessor provision to section 212(c). See Matter of L-- , 1 I. & N. Dec. 1 (A.G. 1940). The INS urges me to reconsider these decisions. See Commissioner's Request to the Board for Referral to Attorney General for Review, In the Matter of Joel Hernandez-Casillas (March 7, 1990) ("INS Referral") at 7. For the reasons set forth below, however, I decline to do so. See infra p. 8.

Discretionary relief under section 212(c) also has been available in one additional situation considered to be the equivalent of exclusion: deportation proceedings in which an alien calls upon the Attorney General to grant him a discretionary adjustment of status under section 245(a). See 8 U.S.C. § 1255(a) (Attorney General may adjust status of alien "to that of an alien lawfully admitted for permanent residence" if, inter alia , the alien "is admissible to the United States for permanent residence"); Matter of Smith , 11 I. & N. Dec. 325, 326-27 (BIA 1965) ("[a]n applicant for adjustment of status under section 245 stands in the same position as an applicant who seeks to enter the United States"). The record here, however, contains no suggestion that the respondent sought a discretionary adjustment of status under section 245(a) at any time. See infra note 16 (remand not necessary to afford the respondent an opportunity to request relief under section 245(a) , because the respondent is ineligible for such relief).

7/ By regulation, the Attorney General has retained authority to review final decisions of the Board, either upon his initiative or by request. 8 C.F.R. § 3.1(h) .

8/ The alien in Cabasug also argued that the determination to deny discretion under section 212(c) for a firearm offense but to permit such relief for other "more serious[]" grounds -- for instance, "crimes of moral turpitude such as murder or rape" -- was unconstitutional. 847 F.2d at 1326. The court rejected this further claim, stating:

We . . . do not agree with the implicit proposition that the Constitution requires Congress to lay out crimes on a spectrum, and grant at least as much discretion for the less serious as for any more serious crimes. . . . Congress may fashion a sanction without discretionary mitigating features in order to deter a kind of conduct about which it is especially concerned. Congress may reasonably determine that a nondiscretionary moderate penalty will deter violators more effectively and more justly than a le sser risk of a harsher penalty.

Id. at 1327.

9/ The respondent errs in his contention that the Attorney General owes deference to the legal conclusions of the Board. See Respondent's Brief at 17-20. By statute, Congress has vested in the Attorney General, not the Board, the authority to rule upon legal questions arising under the immigration laws. See 8 U.S.C. § 1103(a). For purposes of administrative efficiency, the Attorney General has delegated this function to the Board in the first instance, subject to his ultimate review. See 8 C.F.R. § 3.1 . In this capacity, the Board acts on the Attorney General's behalf rather than as an independent body. The relationship between the Board and the Attorney General thus is analogous to an employee and his superior rather than to the relationship between an administrative agency and a reviewing court. The principles that counsel deference by a court to the statutory interpretations of a coequal branch vested by Congress with authority to administer the law are inapplicable here. Cf. Chevron U.S.A. v. Natural Resources Defense Council , 467 U.S. 837 (1984).

10/ On this basis, the Board simply declared in ipse dixit that it found "unpersuasive" the conclusion of the Ninth Circuit in Cabasug . Board Opinion at 6.

11/ Apart from the merits of the Board's decision, the respondent errs in his contention that the Attorney General cannot serve as an impartial decisionmaker in this appeal. See Respondent's Brief at 25-27. The respondent correctly notes that one of the Attorney General's subordinates -- the Solicitor General -- has represented the INS in a separate litigation involving section 212(c) and, in that capacity, urged the Supreme Court to decline consideration of that statutory provision pending the present appeal. See Brief for the Respondent in Opposition to the Petition for a Writ of Certiorari, Ballbe v. INS (No. 89-1111) at 18-19, cert. denied , 110 S. Ct. 2166 (1990). The respondent does not detail how the Solicitor General's actions might bias review by the Attorney General. If the mere involvement of a Department of Justice official were sufficient to bias the Attorney General, then the entire process by which he reviews INS deportation determinations must be open to question, given that the INS -- like the Solicitor General -- is within the Department of Justice. That, however, is plainly not the law.

12/ Although Rivera did involve a deportation proceeding, the application of section 212(c) in that case occurred in the context of a waiver of a ground for deportation that was also a ground for exclusion. 791 F.2d at 1203 (deportation for aiding illegal entry). The facts of Rivera thus are analogous to those in Granados , the administrative precedent from which the Board departed here.

13/ As the respondent observes, the court in Rivera did allude to "the well-established policy of the INS . . . to allow deportable permanent resident aliens . . . to seek a waiver under section 212(c)," and, as evidence of this policy, pointed to both the Board's decision in Silva and the underlying Second Circuit decision in Francis . Rivera , 791 F.2d at 1204 & n.3. The Fifth Circuit emphasized in Rivera , however, that it "ha[s] never ruled on the validity of the Francis holding." Id. at 1204 n.3 (citing Byus-Narvaez v. INS , 601 F.2d 879, 881 n.5 (5th Cir. 1979), and Sierra-Reyes v. INS , 585 F.2d 762, 763 (5th Cir. 1978)). The court did not make such a ruling as part of its decision in Rivera . Even had the Fifth Circuit adopted Francis as the law of that jurisdiction, such a holding would not control the present appeal. As I have explained, the Board's decision here would extend discretionary relief under section 212(c) far beyond situations controlled by Francis or Silva .

14/ This remains true under the 1990 Act. See supra note 1. Section 545 of the 1990 Act enacts a new INA section 242B(e)(5)(A) under which an alien who fails to appear for his deportation proceeding shall be ineligible for 5 years for discretionary relief, including "relief under section 212(c)." This new section 242B appears to rest upon the assumption that section 212(c) relief would otherwise be available in at least some deportation proceedings, but neither the text of section 242B nor its legislative history indicates the precise types of deportation proceedings in which Congress understood such relief to be available. Accordingly, the 1990 Act cannot be taken as a congressional endorsement of the Board's opinion in this case or, indeed, in Silva . Even were the Board to retreat from Silva , relief under section 212(c) would remain available in deportation proceedings that are considered the equivalents of exclusion proceedings and, hence, the need would remain to list section 212(c) among the forms of discretionary relief unavailable under the new INA section 242B.

Section 511(a) of the 1990 Act adds a second sentence to INA section 212(c) stating that the discretionary relief provided thereunder "shall not apply to an alien who has been convicted of an aggravated felony and who has served a term of imprisonment of at least 5 years." In describing a forerunner of this provision, the Senate section-by-section analysis noted that "[s]ection 212(c) provides relief from exclusion and by court decision from deportation . . . . This discretionary relief is obtained by num erous excludable and deportable aliens, including aliens convicted of aggravated felonies . . . ." 136 Cong. Rec. S6604 (daily ed. May 18, 1990). This statement from the legislative history is consistent with my disapproval of the Board's decision here, as my opinion leaves in place the line of administrative and judicial decisions through Granados that applies section 212(c) in deportation cases. Even were that not true, I would be reluctant to interpret a passing, unspecific reference in the legislative history as incorporating into section 212(c) the entire range of administrative and judicial decisions concerning the applicability of that section in deportation proceedings. See Blanchard v. Bergeron , 109 S. Ct. 939, 947 (1989) (Scalia, J., concurring) (citations even of particular judicial decisions in legislative history are "unreliable evidence of what the voting Members of Congress actually had in mind"). This reluctance is especially appropriate where the statutory language enacted by Congress in section 212(c) does not contemplate the use of that provision in deportation. The 1990 Act merely adds to section 212(c) a sentence concerning who may obtain relief under that section, not when such relief may be afforded.

15/ In a 1987 notice of proposed rulemaking announcing changes to other subsections of 8 C.F.R. § 212.3 not implicated here, the INS did note that the Board's decision in Silva had turned section 212(c) -- and, by implication, the regulations implementing that section -- into a source of "full and independent deportation relief." 52 Fed. Reg. 11620 (1987). This comment merely clarifies that the reading of section 212(c) articulated in Silva (and extended in later Board decisions such as the one presently under appeal) arises from adjudication rather than rulemaking.

Were the Board ever to retreat from Silva , the INS still would need to maintain a regulation to govern the application of section 212(c) in deportation proceedings, albeit only those deportations that should have been exclusion proceedings or that of section 212(c) along such lines through Board decisions in adjudication would not appear to require modification of the existing language in 8 C.F.R. § 212.3 .

16/ If the ground for deportation asserted in this case had been other than illegal entry, remand might have been necessary to permit the respondent to seek an adjustment of status under section 245(a). See supra note 6. The present remand, however, does not concern section 245(a) , because relief under that section is available only to an alien "who was inspected and admitted or paroled into the United States." 8 U.S.C. § 1255(a). Congress specifically intended this limitation to foreclose relief under section 245(a) to aliens, like the respondent, "who entered the United States surreptitiously." S. Rep. No. 1651, 86th Cong., 2d Sess. 17 (1960). See also id. at 16 (section 245(a) "will not benefit the alien who has entered the United States in violation of the law"); H.R. Rep. No. 2258, 85th Cong., 2d Sess. 3 (1958) (same).