Interim Decision #3185 

MATTER OF RAMIREZ-SOMERA 

In Deportation Proceedings 

A-38780688 

Decided by Board August 11, 1992 

(1) The plain language of section 212(c) of the Immigration and Nationality Act, 8 

U.S.C.A. § 1182(c) (West Supp. 1992), bars relief under that section to any alien who 

has been convicted of an aggravated felony or felonies and who "has served," not 

merely been sentenced to, a term of imprisonment of at least 5 years for his aggravated 

felony or felonies. 

(2) Although the respondent was sentenced to a 15-year term of imprisonment on his 

aggravated felony conviction, he is not at this time statutorily ineligible for section 

212(c) relief because he has not yet actually served 5 years of this sentence. 

CHARGE: 

Order: Act of 1952—Scc. 24 ga)(4)(B) [8 U.S.C. § 1251(a)(4)(B)) —Convicted of aggravated felony 

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)].--Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Richard Knuck 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated February 19, 1992, the immigration judge found 

the respondent deportable under section 241(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(B) (1988), as an alien 

convicted of an aggravated felony, and under section 241(a)(11) of the 

Act, as an alien convicted of a controlled substance violation.' She 

further determined that the respondent was statutorily ineligible for a 

These sections of the Act have been revised and redesignated as sections 

241(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and (B)(i) (Supp. II 

1990), by section 602(a) of the Immigration Act of 1990, Pub. L No 101.649, 104 Star. 

4978, 5080, but that amendment does not apply to deportation proceedings for which 

notice has been provided to the alien before March 1, 1991. See section 602(d) of the 

Immigration Act of 1990, t04 Stat. at 5082. 

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waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C.A. 

§ 1182(c) (West Supp. 1992), and ordered him deported to his native 

Mexico. The respondent has appealed from that decision. The appeal 

will be sustained, the decision of the immigration judge will be vacated 

insofar as it held that the respondent was statutorily ineligible for 

section 2I2(c) relief, and the record will be remanded for further 

proceedings. The request for oral argument is denied. 8 C.F.R. § 3.1(e) 

(1992). - 

The respondent is a 30-year-old native and citizen of Mexico. The 

record reflects that he was lawfully admitted to the United States for 

permanent residence on December 14, 1983, at San Ysidro, California. 

The record further reflects that on October 11, 1989, he was convicted 

in the District Court of Nevada in and for Clark County, of conspiracy 

to sell a controlled substance (cocaine) for which he was sentenced to a 

period of confinement of 3 years. He was also convicted on the same 

day in the same court of trafficking in a controlled substance (cocaine) 

for which he was sentenced to a 15-year period of incarceration to run 

concurrently with the aforementioned sentence. 

In the proceedings conducted before the immigration judge, the 

respondent admitted that he was convicted of the crimes delineated 

above. For its part, the Immigration and Naturalization Service 

introduced a certified copy of the respondent's record of conviction 

further establishing that he had been convicted as alleged in the Order 

to Show Cause and Notice of Hearing (Form I-221). Based on this 

evidence, the immigration judge found the respondent deportable as 

an alien convicted both of a controlled substance violation and an 

aggravated felony. The respondent then sought an opportunity to 

apply for a waiver under section 212(c) of the Act. 

We note that as a result of language added by recent amendments to 

section 212(c) of the Act, relief under that section is not available "to 

an alien who has been convicted of one or more aggravated felonies 

and has served for such felony or felonies a term of imprisonment of at 

least 5 years." Section 511(a) of the Immigration Act of 1990, Pub. L. 

No. 101-649, 104 Stet. 4978, 5052 (effective Nov. 29, 1990), as 

corrected by section 306(a)(10) of the Miscellaneous and Technical 

Immigration and Naturalization Amendments of 1991, Pub. L. No. 

102-232, 105 Stat. 1133, 1751 (effective Dec. 12, 1991); see also 

Matter of Meza, 20 UN Dec. 257 (BIA 1991). 

In the instant case, the immigration judge determined, pursuant to 

the revision to section 212(c) detailed above, that the respondent was 

statutorily ineligible for such relief because it appeared from the 

evidence presented that he would actually serve 5 or more years of the 

15-year sentence imposed by the state court on his aggravated felony 

conviction. The immigration judge reached this conclusion notwith565 
Interim Decision #3185 

standing the fact that as of the date of the hearing, the respondent had 

not yet served 5 years in prison. In light of her determination that the 

respondent was statutorily ineligible for a section 212(c) waiver, the 

immigration judge declined to conduct further proceedings on the 

merits of the respondent's application for such relief. 

On appeal, the respondent has not articulated any specific grounds 

for challenging the immigration judge's decision despite his having 

been granted two extensions for the purpose of filing a supporting brief 

or written statement. Under these circumstances, we would normally 

be inclined to summarily dismiss the appeal. We note, however, that 

the immigration judge determined that the respondent was statutorily 

ineligible for section 212(c) relief solely because he had been convicted 

of an aggravated felony for which he had been sentenced to a term of 

imprisonment of 15 years and would in all likelihood serve more than 

5 years of this sentence. At the same time, the record reflects that the 

respondent had not yet actually served either an individual or 

aggregate 5-year period of imprisonment as of the date of the hearing. 

The plain language of section 212(c) of the Act, as amended, now 

bars such relief to any alien who has been convicted of an aggravated 

felony or felonies and who "has served," not merely been sentenced to, 

a term of imprisonment of at least 5 years for his aggravated felony or 

felonies. At the time of his hearing, the respondent had not served 5 

years in prison based on his aggravated felony conviction; therefore, he 

was not by that reason statutorily ineligible for relief under section 

212(c). 

Accordingly, we now reverse the decision of the immigration judge 

insofar as it held that the respondent was statutorily ineligible for a 

section 212(c) waiver, and we remand the record for further proceedings on the merits of his application for such relief. The Service has 

indicated on appeal that it does not oppose a remand under the 

circumstances presented by this case. 

We recognize that our decision in this case will result in the 

expenditure of administrative effort and public funds which might not 

otherwise be necessary if the proceedings were continued to a point in 

time when the respondent has actually served 5 years in prison on his 

aggravated felony conviction, thereby establishing with certainty his 

statutory ineligibility for the relief he now seeks. We note, however, 

that the determination of whether and when to institute proceedings in 

individual cases is within the sole province of the Immigration and 

Naturalization Service, and its decisions in this regard are not 

reviewable by either the immigration judge or this Board. Matter of UM-, 20 I&N Dec. 327 (BIA 1991), affd, 989 F.2d 1085 (9th Cir. 1993); 

Matter of Torres, 19 MN Dec. 371 (BIA 1986); Matter of Ramirez566 
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Sanchez, 17 I&N Dec. 503 (BIA 1980); Matter of Geronimo, 13 I&N 

Dec. 680 (BIA 1971). 

In any event, the approach we have adopted in the instant case is 

not without its benefits. By considering the merits of the respondent's 

section 212(c) application now, rather than waiting until he has 

actually served 5 years on his aggravated felony conviction, his 

deportation proceedings, including any subsequent administrative and 

judicial appeals, may very well be completed prior to his release from 

prison. This anticipated result is consistent with the expressed desire 

of the Congress of the United States to institute and complete 

deportation proceedings against criminal aliens as expeditiously as 

possible. See section 242(i) of the Act, 8 U.S.C. § 1252(i) (1988) 

(requiring expeditious institution of deportation proceedings against 

aliens convicted of crimes subjecting them to deportation); section 

242A of the Act, 8 U.S.C. § 1252a (1988) (establishing expedited 

procedures for the deportation of aliens convicted of committing 

aggravated felonies). 

Accordingly, the appeal will be sustained. 

ORDER The appeal is sustained. The decision of the immigration judge is vacated insofar as it held that the respondent was 

statutorily ineligible for a waiver of inadmissibility 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. 

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