Interim Decision #3191 

MATTER OF RAINFORD 

In Deportation Proceedings 

A-41651633 

Decided by Board September 9, 1992 

A respondent who is convicted of criminal possession of a weapon is deportable under 

section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) 

(Stipp. II 1990); however, such a conviction does not preclude a finding of admissibility 

in connection with an application for adjustment of status under section 245(a) of the 

Act, 8 U.S.C. § 1255(a) (1988), and it may not serve as a ground of deportability if the 

respondent's status is adjusted to that of a lawful permanent resident. Matter of 

Rafipour, 16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec. 293 (BIA 

1942), distinguished. 

CHARGE: 

Order; Act of 1952—Sm.:. 241(a)(2)(C) [8 U.S.C. § 1251(02)(0] —Convicted of firearms violation 

ON BEHALF OF RESPONDENT: 

Rev. Robert Vitaglione 

Accredited Representative 

Comite Nuestra Senora de Loreto 

sabre Asuntos de Inmigracion 

856 Pacific Street 

Brooklyn, New York 11238-3142 

ON BEHALF OF SERVICE: 

Bernard Mendelow 

General Attorney 

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

In a decision dated June 17, 1992, the immigration judge found the 

respondent deportable as charged, pretermitted his application for 

adjustment of status, and ordered him deported to Jamaica. The 

respondent has appealed from that decision. The appeal will be 

sustained and the record will be remanded. The request for oral 

argument is denied_ 8 C.F.R. § 3.1(e) (1992). 

The respondent is a single, 23-year-old native and citizen of 

Jamaica. On March 27, 1988, he was admitted to the United States as 

a lawful petutauent resident. On April 30, 1991, he was convicted in 

the Supreme Court of the State of New York, County of Kings, of 

criminal possession of a weapon in the third degree. For this offense, 

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he was sentenced to a term of imprisonment of 1 year. On the basis of 

this 1991 conviction, the Immigration and Naturalization Service 

issued an Order to Show Cause and Notice of Hearing (Form I-221), 

charging the respondent with deportability as an alien convicted of a 

firearms offense under section 241(a)(2)(C) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II 1990). The 

respondent, through counsel, conceded deportability. We fmd that 

deportability as charged was established by clear, unequivocal, and 

convincing evidence. See Woodby v. INS, 385 U.S. 276 (1966); 8 

C.F.R. § 242.14(a) (1992). 

The record file contains the respondent's Application for Permanent Residence (Form 1-485) and an unadjudicated Petition for Alien 

Relative (Form 1-130) filed on his behalf by his United States citizen 

father. The Form 1-485 is supported by a copy of the respondent's 

father's Certificate of Naturalization. 

The immigration judge moved to the relief phase of the deportation 

hearing and determined that there was no relief available to the 

respondent. He stated that based on Matter of V-, 1 I&N Dec. 293 

(BIA 1942), and subsequent cases, an alien who is not subject to a 

statutory ground of exclusion, but who would immediately become 

subject to deportation upon entry, must be found inadmissible. He 

concluded that the respondent was therefore ineligible for adjustment 

of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (1988). 

On appeal, the respondent contends that the "futility doctrine" no 

longer exists because Matter of V-, supra, was replaced by the 

Immigration and Nationality Act of 1952, which removed an "implied" ground of excludability. In its brief the Service merely concurs 

with the immigration judge's decision, without citing or discussing any 

cases. 

We find merit to the respondent's appeal. The respondent sought to 

apply for adjustment of status. The burden of proving eligibility for the 

privilege of adjustment of status is upon the alien. See Lennon v. INS, 

527 F.2d 187 (2d Cir. 1975), rev'g Matter of Lennon, 15 I&N Dec. 9 

(BIA 1974). Section 245(a) of the Act requires that an alien meet three 

conditions: 1) he must make an application for adjustment of status; 2) 

he must be eligible to receive a visa and be admissible for permanent 

residence; and 3) an immigrant visa must be immediately available at 

the time of application. Here, the respondent has made an adjustment 

of status application. If the visa petition filed on his behalf is 

approved, an immigrant visa would immediately be available to him, 

since first-preference visa numbers are now current. See Department 

of State Visa Bulletin, Vol. VII, No. 14 (Sept. 1992). Under 8 C.F.R. 

§ 245.2(a)(2)(i) (1992), the adjustment application should be retained 

for processing under these circumstances. 

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The remaining issue before us is whether the respondent meets the 

second condition that he be admissible to the United States. We find 

that the respondent can meet this second condition. The immigration 

judge reasoned that the respondent, by virtue of his firearms conviction, cannot prove the requirement of admissibility in section 245(a) 

of the Act. Specifically, the immigration judge stated that the 

respondent is excludable notwithstanding the absence of a specific 

exclusion ground in the Act. The immigration judge found support for 

his decision in Matter of V-, supra, in which we held that an alien could 

be excluded on the basis of conduct which would be a ground of 

deportability, but not a ground of excludability. The immigration 

judge noted that our reasoning for creating such an administrative 

practice was that it would be futile to admit someone only to have him 

immediately become subject to deportation from the United States. Id. 

at 295. 

The immigration judge also discussed in his decision Matter of RG-, 8 I&N Dec. 128 (BIA 1958), and Matter of Sanchez, 16 I&N Dec. 

363 (BIA 1977). In Matter of R-G- the Board held that notwithstanding 

the lack of a specific statutory ground of exclusion, an alien who upon 

entry would immediately become subject to deportation should be 

found excludable_ In both cases the Board held that an alien deportable 

under former section 241(a)(5) of the Act, 8 U.S.C. § 1251(a)(5) 

(1988), would not again become deportable when he had been lawfully 

admitted for permanent residence.' The immigration judge found 

these cases distinguishable because the present respondent would still 

be deportable based on his firearms conviction. 

In essence, the immigration judge's reasoning is that because the 

language in section 241(a)(2)(C), "at any time after entry," does not 

couple deportability with any particular entry into the United States, it 

makes an alien such as the respondent immediately deportable for the 

earlier firearms conviction. There are no waivers in the Act for this 

deportation ground. 

We reject this position and determine that the rule in Matter of V-, 

supra, is inapposite in the adjustment of status context. It has been the 

consistent practice of this Board to interpret the requirement of 

admissibility in section 245(a) with reference only to the exclusion 

grounds in the Act. See, e.g., Matter of Zangivill, 18 I&N Dec. 22, 28 

(BIA 1981), overruled on other grounds, Matter of Ozkok, 19 I&N Dec. 

546 (BIA 1988); Matter of Parodi, 17 I&N Dec. 608, 611 (BIA 1980); 

The grounds of deportability under section 241(a) of the Act have keen revisers and 

redesignated by section 602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 

Stat. 4978, 5077-81 (enacted Nov. 29, 1990), with former section 241(a)(5) now being 

found at section 241(a)(3)(B). 

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Matter of Wolf, 16 I&N Dec. 125, 126 (BIA 1977); Matter of Smith, 11 

I&N Dec. 325, 326-27 (BIA 1965). Were we now to apply the rule in 

Matter of V-, we would be imposing upon an applicant an additional 

burden, not appearing in the statute, that he prove not only that he is 

admissible, but also that he would not become immediately deportable 

once admitted for lawful permanent residence. 

Further, the rule in Matter of V- requires an "entry." An adjustment 

of status, however, does not constitute an entry. As we have repeatedly 

held, an adjustment of status is merely a procedural mechanism by 

which an alien is assimilated to the position of one seeking to enter the 

United States. See Master of Connelly, 19 1&N Dec. 156, 159 (BIA 

1984); Matter of Smith, supra; see also section 101(a)(13) of the Act, 8 

U.S.C. § I 101(a)(13) (1988); Matter of Patel, 20 I&N Dec. 368 (BIA 

1991) (noting that we have fashioned a more precise definition of what 

an "entry" is through precedent decisions). 

We believe that Congress' intent is clearly expressed by the plain 

language used in section 245(a) of the Act? See Ardestani v. INS, 502 

U.S. 129, 135-36 (1991); INS v. Cardoza-Fonseca, 480 U.S. 421, 431 

(1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984) (stating that M all 

cases involving statutory construction, the starting point must be the 

language employed by Congress, and the legislative purpose is 

expressed by the ordinary meaning of the words used). 

Our decision in Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978), 

an adjustment of status case, is noteworthy because in that decision, 

we also declined to apply the rule in Matter of V-, holding instead that 

the alien would not become deportable again by reason of a prior act, 

once admitted for lawful permanent residence. 

The alien in Mailer ofRafipour was found deportable under section 

241(a)(2) of the Act for remaining in the United States longer than 

permitted. In lieu of deportation, he was granted the privilege of 

voluntary departure. No appeal followed. However, the alien later filed 

a motion to reopen in order to apply for adjustment of status. The 

immigration judge granted the motion and the Service appealed. It 

claimed that the alien was ineligible for adjustment of status because, 

following his admission for lawful permanent residence, he would 

become immediately deportable under section 241(a)(5) on the basis of 

a 1975 conviction for giving false statements on an application for 

alien registration. See Matter of V-, supra. We disagreed. Noting that 

21n Matter of Hernandez-Casillas, 20 1&N Dec. 262, 289, (BIA 1990; A.G. 1991), 

uff"el, 933 F.2d 231 (5th Or. 1993), the Attorney General stated: "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" 

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Interim Decision #3191 

the situation of this alien closely resembled that in Matter of R-G-, 

supra, we followed the view that the alien would no longer be 

deportable pursuant to section 241(a)(5) of the Act for his earlier 

conviction, once he was admitted as a lawful permanent resident. 

We find no meaningful basis to distinguish the circumstances of the 

instant case from those addressed and resolved in Matter of Rafipour. 

Although Matter of Raftpour and the cases which preceded it involved 

section 241(a)(5) of the Act, we have never stated that the reasoning 

used there was limited to cases addressing section 241(a)(5) solely. The 

issue of whether an alien would remain deportable on the basis of prior 

conduct following his admission for lawful permanent residence 

apparently arose consistently in the section 241(a)(5) context, but 

sheerly by happenstance. See Matter of Sanchez, supra, at 365 n.2. In 

the instant case, as in Matter of Rafipour, , the respondent faces a charge 

of deportability for which there is no corresponding ground of 

exclusion in the Act. There is no indication in the Act or its legislative 

history that Congress ever intended to bar this class of aliens, like 

those in the section 241(a)(5) context, from becoming lawful permanent residents. We therefore find no reason for not extending the 

reasoning of Matter of Rafipour to this ground of deportability. 

Accordingly, we hold that the conviction which renders the 

respondent deportable under section 241(a)(2)(C) of the Act will not 

preclude a showing of admissibility for purposes of section 245(a) and 

that if granted adjustment of status to lawful permanent resident, the 

respondent will no longer be deportable on the basis of this prior 

conviction. . 

Having found that the respondent is admissible to the United States 

and therefore eligible to apply for adjustment of status, we will remand 

the case to the immigration judge to allow the respondent to present 

his application for that relief. We note that to be granted adjustment of 

status, the visa petition on his behalf will have to be approved by the 

Service. The respondent will also have to show the immigration judge 

that he merits adjustment of status in the exercise of discretion. 

Finally, visa numbers for first-preference classification will still need 

to be current. 

ORDER: The appeal is sustained and the record is remanded 

to the immigration judge for further proceedings in accordance with 

the foregoing opinion and for entry of a new decision.