Interim Decision #3192 

MATTER OF MONTENEGRO 

In Deportation Proceedings 

A-24937958 

Decided by Board November 18, 1992 

(1) Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. III 

1991), is ineffective to remove deportability under section 241(a)(2)(C) of the Act, 8 

U.S.C. § 1251(a)(2)(C) (Supp. III 1991), for conviction of a firearms violation, even 

where the fireanns violation is also a crime involving moral turpitude within the scope 

of section 212(a)(2)(A)(i)(1) of the Act. Matter ofHernandez-Casillas, 20 I&N Dec. 262 

(BIA 1990; A.G. 1991), aff'4 983 F.2d 231 (5th Cir. 1993); and Matter of Granados, 

16 I&N Dec. 726 (BIA 1979), Ord, 624 F.2d 191 (9th Cir. 1980), followed. 

(2) Matter of Meza, 20 I&N Dec. 257 (BIA 1991), is limited to the question of eligibility 

for section 212(c) relief in the case of a conviction for a drug-trafficking aggravated 

felony and is based on the specific amendment to section 212(c) regarding aggravated 

felonies; it does not alter the general rule represented in Mailer of Watirtd, 19 TRW 

Dec. 182 (BIA 1984), and Matter of Granados, supra, and reaffirmed in Matter of 

Hernandez-Casillas, supra, that section 212(c) relief 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 excludability. 

CHARGE 

Order: Act of 1952—Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation 

ON BEHALF OF RESPONDENT: 

Alma Rosa Nieto, Esquire 

520 South Lafayette Park Place 

Suite 204 

Los Angeles, California 90057 

ON BEHALF OF SERVICE: 

Jo Ann McLane 

General Attorney 

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

Opinion: Heilman, Board Member. 

In a superseding order dated March 30, 1992, the immigration 

judge found the respondent deportable as charged under section 

241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1251(a)(2)(C) (Supp. III 1991), for conviction of a firearms violation. The immigration judge further determined that the respondent 

was ineligible for a waiver of inadmissibility under section 212(c) of 

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the Act, 8 U.S.C. § 1182(c) (Supp. III 1991), and ordered him 

deported to Guatemala. The respondent has appealed. The appeal will 

be dismissed. 

The respondent is a native and citizen of Guatemala who was 

admitted into the United States on October 29, 1979, as a nonimmigrant visitor for pleasure. On June 24, 1984, his status was adjusted to 

that of a lawful permanent resident. On January 18, 1989, the 

respondent was convicted of voluntary manslaughter and assault with 

a firearm, in violation of California Penal Code sections 192(a) and 

245(a)(2), respectively. At the hearing before the immigration judge 

the respondent conceded deportability under section 241(a)(2)(C) of 

the Act, based on the conviction for assault with a firearm. He does 

not, and indeed could not, contest deportability on appeal. See Matter 

of Roman, 19 l&N Dec. 855 (BIA 1988). Deportability has been 

established by clear, unequivocal, and convincing evidence. Woodby v. 

INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1992). 

On appeal the respondent contends that the immigration judge 

failed to consider the trial brief submitted in support of his claim of 

eligibility for a waiver under section 212(c) of the Act, and that he was 

therefore denied due process and a fair hearing. In addition, the 

respondent reasserts his claim that he is eligible for section 212(e) 

relief and is deserving of a grant of the waiver in the exercise of 

discretion. Inasmuch as we have reviewed the record on a de novo 

basis, the respondent has not suffered any prejudice due to the 

immigration judge's alleged failure to consider all of his arguments in 

favor of his request for relief under section 212(c) of the Act. Cf. 

Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). 

The decision of the Attorney General in Matter of HernandezCasillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 

(5th Cir. 1993), reaffirmed the Board's holding in Matter of Granados, 

16 I&N Dec. 726 (BIA 1979), affd, 624 F.2d 191 (9th Ch.. 1980), that 

a section 212(c) waiver is available in deportation proceedings only to 

those aliens who have been found deportable under a charge of 

deportability for which there is a comparable ground of excludability. 

See also Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988); Matter of 

Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Salmon, 16 I&N Dec. 

734 (BIA 1978). This Board and all immigration judges are strictly 

bound by the determinations of the Attorney General because our 

jurisdiction and authority derive from his. See 8 C.F.R. §§ 3.0-3.1(d) 

(1992). The provisions at issue in Hernandez-Casillas were those that 

existed prior to the revisions of section 212(c) and the deportation and 

exclusion grounds by the Immigration Act of 1990, Pub. L. No. 101-

649, 104 Stat. 4978 (effective Nov. 29, 1990). However, even after the 

1990 revisions, there is no corresponding exclusion ground to the 

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charge of deportability under section 241(a)(2)(C) of the Act (previously 241(a)(14)). Accordingly, we find the holdings in Hernandez-Casillas and Granados to be controlling in this case and conclude that the 

respondent is not eligible for a waiver under section 212(c) of the Act. 

See Matter of Hernandez -Casillas, supra, at 263 n. 1. 

We nonetheless find it appropriate to address one of the respondent's contentions more specifically. The respondent contends that his 

conviction for assault with a firearm, for which he was found 

deportable under section 241(a)(2)(C) of the Act, would also render 

him excludable under section 212(a)(2)(A)(i)(I) of the Act (previously 

212(a)(9)), for having been convicted of a crime involving moral 

turpitude, and that section 212(a)(2)(A)(i)(I) of the Act should 

therefore be considered a comparable ground of exclusion for purposes 

of section 212(c) eligibility. In support of this assertion the respondent 

cites Mailer of Meza, 20 I&N Dec. 257 (BIA 1991). 

This is the type of claim considered and rejected in Matter of 

Wadud, supra. In Wadud the respondent was charged with and found 

deportable under section 241(a)(5) which has no comparable enumerated ground among those specified in section 212(c). The respondent 

argued, however, that because his conviction involved moral turpitude, he would come within the scope of section 212(a)(9) were he to 

apply for admission to this country, and that he should therefore be 

considered eligible for section 212(c) relief. Matter of Wadud, supra, at 

185. Upon considering the respondent's position, the Board specifically "decline[d] to expand the scope of section 212(c) relief in cases 

where the ground of deportability charged is not also a ground of 

inadmissibility." Id. Similarly, the respondent's argument in this case 

relative to crimes involving moral turpitude under section 

212(a)(2)(A)(i)(I) of the Act must be rejected; section 212(c) cannot 

waive the charge of deportability under section 241(a)(2)(C) in the 

instant case because section 241(a)(2)(C) has no analogous ground of 

inadmissibility enumerated in section 212(c) of the Act. 

Contrary to the respondent's contention, our decision in Matter of 

Meza, supra, did not expand the general holding represented in Matter 

of Wadud, supra, and Matter of Granados, supra. In Meza we 

addressed the unique situation created by the language and legislative 

history of an amendment to section 212(c) by section 511 of the 

Immigration Act of 1990, 104 Stat. at 5052, which indicated that some 

aggravated felons are eligible for a section 212(c) waiver in deportation 

proceedings even though there is no single comparable ground of 

exclusion based on conviction of an aggravated felony. Matter of 

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Meza, supra, at 3) Based on the implications of this language and 

history we found that "a waiver under section 212(c) is not unavailable 

to an alien convicted of an aggravated felony simply because there is 

no ground of exclusion which recites the words, 'convicted of an 

aggravated felony,' as in section 241(a)(4)(B) of the Act." Id. at 3-4. We 

noted that the definition of "aggravated felony" at section 101(a)(43) 

of the Act, 8 U.S.C. § 1101(a)(43) (Supp. III 1991), refers to several 

types or categories of offenses. Id. at 4. We further noted that the 

specific category of aggravated felony based on "any illicit trafficking 

in any controlled substance ... , including any drug trafficking crime" 

is comprised of trafficking offenses, "most, if not all, of which would 

also be encompassed within the scope of section 212(a)(23) of the 

Act." Id. at 5. We therefore concluded that "as the respondent's 

conviction for a drug-related aggravated felony clearly could also form 

the basis for excludability under section 212(a)(23), he is not precluded 

from establishing eligibility for section 212(c) relief based on his 

conviction for an aggravated felony." Id. Thus, the discussion in 

Matter of Meza is limited to the question of section 212(c) eligibility in 

the case of a conviction for a drug-trafficking aggravated felony and is 

based on the specific amendment to section 212(c) regarding aggravated felonies; it does not alter the general rule represented in Matter of 

Wadud and Matter of Granados, and reaffirmed in Matter of Hernandez-Casillas, supra. Following the rule of these precedents, we 

conclude that deportability under section 241(a)(2)(C) of the Act 

cannot be waived by section 212(c) because there is no analogous 

ground of inadmissibility enumerated in section 212(c) of the Act. 2 

 Accordingly, the appeal will be dismissed. 1 The Immigration Act of 1990 amended section 212(c) of the Act to include that a 

section 212(c) waiver "shall not apply 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, 104 Stet. at 5052, 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. 1733, 1751 

(enacted Dec. 12, 1991). As discussed in Matter of4-4-, 20 I&N Dec. 492 (BIA 1992), 

the section 212(c) statutory bar concerning aggravated felonies applies to all applications 

for relief submitted after November 29, 1990. See also 8 C.F.R. § 212.3(0(4) (1992). 

2The respondent cites the concurring opinion by Board Member Michael J. Heilman 

in Matter of Mesa for the alternate position that the amendment to section 212(c) 

provided a statutory basis for a waiver for all deportation charges except the limited 

group of aggravated felons specifically disqualified. We note first that, very different 

from the respondent's interpretation, the position taken in the concurring opinion was 

that, regardless of the availability of section 212(c) relief to any other deportation charge 

under the analysis of Wadud and Granados, the specific language of amended section 

212(c) provided a statutory basis of eligibility for certain aggravated felons in 

deportation proceedings. Second, we are not persuaded by the respondent's. blanket 

assertion that by specifically limiting the availability of section 212(c) relief to certain 

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ORDER: The appeal is dismissed. 

CONCURRING OPINION: Michael J. Heilman, Board Member 

I respectfully concur. 

It is unfortunate that the respondent conceded deportability under 

section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1251(a)(2)(C) (Supp. III 1991). This section renders deportable an 

alien convicted of specified firearms violations. The respondent had 

been convicted of assault with a firearm. The record in this case 

indicates that this conviction was for a "lesser included offense," the 

respondent having been charged initially with murder. It appears that 

the respondent and two other men may have had a quarrel with 

someone at a social gathering, left in anger, and returned with a 

shotgun, which one of the three proceeded to fire, killing a man. 

On appeal, rather than addressing his concession of deportability, 

the respondent argues that the assault conviction is also a crime 

involving moral turpitude comparable to section 212(a)(2)(A)(i)(I) of 

the Act and is thus a conviction which may be waived. I agree with the 

majority that this argument is not persuasive. Under the immigration 

law, a number of offenses may fall into more than one ground of 

deportability. Some examples would be a drug offense, which could be 

charged as an aggravated felony or a controlled substance violation, or 

a murder, which could be charged as a crime of moral turpitude or an 

aggravated felony. The only issue confronting an immigration judge or 

this Board in such a case would be whether the charge is proven by the 

Service, not whether the Service might have alleged a different ground 

of deportability. 

In this case, however, I believe that there are strong reasons to 

continue to categorize assault with a firearm solely as a crime of moral 

turpitude, rather than to characterize it as having a dual nature, as also 

constituting a firearms offense. The essence of an assault charge is the 

harm inflicted upon a fellow human being, the moral opprobrium 

associated with injuring another person. Firearms violations, on the 

other hand, are often in the category of regulatory offenses, particularly those relating to the possession of handguns. 

To characterize a conviction for assault with a firearm as a violation 

of a firearms law would be to depart from 50 years of precedent with 

no good justification. In a line of cases beginning with Matter of R-, I 

I&N Dec. 209 (BIA 1942), and extending to Matter of Danesh, 19 I&N 

Dec. 669 (BIA 1988), this Board has consistently and logically treated a 

aggravated felons, Congress thereby automatically extended the waiver to all charges of 

deportability not previously covered. 

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conviction for assault with a deadly weapon as a crime of moral 

turpitude, whether as a ground for exclusion or deportation, or in 

relation to a waiver under section 212(c) of the Act, 8 U.S.C. § 1182(c) 

(Supp. III 1991). Conversely, a conviction for a firearms violation has 

been specifically characterized by this Board as not constituting a 

crime of moral turpitude. Matter of Granados, 16 I&N Dec. 726, 728 

(BIA 1979), affil, 624 F.2d 191 (9th Cir. 1980) (where the conviction 

was for possession of a sawed-off shotgun). To hold that an assault 

with a firearm is a firearms offense is absolutely inconsistent with 

prior interpretations. 

The Attorney General, in an opinion rendered some 60 years ago, 

stated: 

The above-quoted portion of the decree of the Italian court shows that the alien has 

been convicted of the crime of wilfully assaulting and seriously injuring another by 

shooting him with a pistol. Judging from this crime by the standards prevailing in the 

United States, as those standards have been announced in the decisions of our courts, 

it is one involving moral turpitude. According to those standards any crime which 

involves an act intrinsically and morally wrong and malum in se, or an act done 

contrary to justice, honesty, principle, or good morals, is a crime involving moral 

turpitude and applying this rule, our courts have held that a wilful assault with a 

dangerous weapon involves moral turpitude. 

In the Matter of G-R-, 2 I&N Dec. 733, 734 (BIA 1946; A.G. 1947) 

(citations omitted) (quoting 39 Op. A.G. 95, 98 (1935)). 

By contrast, a firearms violation, as set forth in section 241(a)(2)(C) 

of the Act lists the following offenses: 

Certain Firearms Offenses.— Any alien who at any time after entry is convicted 

under any law of purchasing, selling, offering for sale, exchanging, using, owning, 

possessing, or carrying in violation of any law, any weapon, part, or accessory which 

is a firearm or destructive device (as defined in section 921(a) of title 18, United 

States Code) is deportable. 

None of these offenses requires, or alludes to in the slightest 

manner, any evil intent on the part of the offender, or any element of 

injury to any other person. 

If we take the position that any criminal offense that refers to a 

firearm is a firearms offense, then offenses other than assault would 

also be in the firearms category. The commission of a burglary while 

armed, or a rape while armed, 'would also place an alien within the 

firearms provision. These latter offenses have been treated as crimes of 

moral turpitude as well, because their essence is the depravity or 

vileness they exhibit. The moral condemnation comes from the act of 

burglary or rape, not the fact that the criminal had a gun in his pocket. 

It is obvious that it would be convenient for the Service, immigration judges, and this Board if an assault with a firearm were treated as 

a firearms offense where the respondent might otherwise seek a waiver 

under section 212(c) of the Act. Under the Attorney General's decision 

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in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 

1991), affd, 983 F.2d 231 (5th Cir. 1993), an alien in this category 

would not be eligible for a waiver. Whether this interpretation would 

ultimately prove more troublesome is not entirely certain. It is very 

likely that the time and effort now spent balancing equities and 

adverse factors would be consumed in construing state and federal 

criminal laws and their unending nuances. One need only think of the 

struggles that have faced this Board in trying to decide if something as 

elementary as a "conviction" exists under any of 50 state laws. See 

Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). 

As the respondent correctly pointed out at the hearing below, 

firearms convictions are grouped in a separate section of the California 

criminal code. Crimes such as assault and homicide have their own 

sections. The assault provision under which the respondent was 

convicted seems to categorize offenses by the type of victim and of the 

weapon used and then proceeds to set different levels of punishment. 

In some state criminal codes, the severity of sentence is the subject of 

so-called enhancement provisions, with severity of punishment differing by type of weapon used. See Matter of Rodriguez-Cones, 20 I&N 

Dec. 587 (BIA 1992). We will see, therefore, that an individual 

convicted under a state code such as this will have committed a 

firearms violation, but in another state, where the criminal statute 

itself does not refer to "firearm," but reserves that reference to a 

sentencing statute, the individual will have been convicted of an 

assault only. The individuals may have committed identical offenses 

and drawn identical sentences, yet one will be barred from eligibility 

for a waiver, while another will not. 

Before this Board or anyone else jettisons 50 years of established 

precedent, there should be serious consideration given to the consequences. First of all, abandoning this precedent is unnecessary. The 

amended language of the firearms provision does not oblige us to alter 

our long-standing interpretation. We have no legislative history to 

guide us, and the amendatory language does not clearly chart a new 

interpretation. 

Secondly, we are not confronted with a situation where the 

respondent is off scot-free if he is charged with deportability for having 

committed a crime of moral turpitude. He would be able to apply for a 

waiver, but would have to show that it was warranted. We can thus 

state with confidence that sticking with our long-standing interpretation will not result in some outrageous or absurd result. 

Thirdly, I have serious doubts about characterizing an assault with a 

firearm as a firearms violation where the respondent may also apply 

for asylum and withholding of deportation. At a minimum, we will 

have to distinguish "turpitudinous" firearms violations from those 

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that are not. In doing so, we will inevitably retrace the path already 

followed in deciding whether an assault is a crime of moral turpitude. 

This will occur because we will be obliged to examine the act for which 

the firearm was used or intended to be used. We will be required to do 

this because a firearms violation is not on its face a "particularly 

serious crime" or an "aggravated felony," convictions which bar 

eligibility for refugee status. 

As a fourth matter, we will be expanding the already embarrassing 

absurdity which confronts us with section 212(c) waivers. The most 

egregious types of criminal acts may be waived, but the least harmful 

may result in deportation or exclusion_ Surely, we should take into 

account the fact that a firearms violation is often a lesser included 

offense, or presented as part of a plea bargain in a state court. We thus 

have the incongruous result that as a state charge is diminished, the 

immigration consequences become more severe. Here, for example, 

murder was charged and the respondent was found guilty of voluntary 

manslaughter mid assault with a firearm. If he had been found guilty of 

murder or manslaughter alone, he would be eligible for a section 212(c) 

waiver. Surely, such illogical and unfair results breed justifiable 

contempt for the immigration laws, which hardly rank high in public 

estimation as it is. 

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