Interim Decision #1333 

MAI-PER OF EDWARDS 

In DEPORTATION Proceedings 

A-11707825 

Decided by Board November 12, 1963, and March, 9, 1964 

Respondent, admitted to the United States for permanent residence in 1916, convicted in 1939 and again in 1961 of a crime involving moral turpitude, who last 

entered the United States in 1962 upon his erroneous claim of United States 

citizenship following a brief absence of a few hours to Canada to attend a 

funeral, is eligible for the exercise of the discretionary authority contained in 

section 212(c), Immigration and Nationality Act, since it is not necessary that 

respondent's return to the United States have been an "entry" under Rosenberg 

v. 'lean, 314 'U.S. 440, for the purposes of a grant of relief under section 212(e). 

which section makes no reference to "entry" but states "returning to a lawful 

=relinquished domicile". 

Mum: 

Order: Act of 3052—Section 241(a) (4) [8 U.S.O. 1251(a) (4)3—Convicted 

of two crimes involving moral turpitude after entry not arising out 

of a single scheme of criminal misconduct, to wit: (1) Breaking and 

entering a building in the nighttime with intent to commit larceny 

therein; (2) larceny by conversion [8 U.S.O. 1251 (a) (4) ]. 

BEFORE THE BOARD 

(November 12, 1963) 

Respondent is male, married and 54 years old. He was admitted. to 

the United States for permanent residence on July 4, 1916, at the age 

of 7 years, accompanied by his mother, father, one brother (Antonios), 

and one sister (Besine). Respondent was last admitted on June 12, 

1962, from Canada on a claim of United States citizenship following 

a visit of a few hours to attend a funeral The special inquiry officer 

found that the record establishes that respondent was born in Canada, 

that he is an alien, and that he is deportable on the charge stated above, 

conviction of two crimes involving moral turpitude after entry, not 

arising out of a single scheme of criminal misconduct. 

There was an issue regarding respondent's claim of United States 

citizenship, which was resolved against him by the special inquiry 

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officer. Four exhibits relating to respondent's place of birth are in 

the record. Exhibit 7 is his birth registration, naming the parents, 

and the fact that they were married in Lebanon. It omits the place 

of the child's birth but the special inquiry officer believed that the 

registration would not have been made where it was if the child had 

been born outside the country. Other answers given on the registration form seem to assume birth in the home, and the mother, "Lizzie 

Edwards", gave and certified the information. Exhibit 8 is a photostatic copy of the naturalization application of respondent's mother, 

listing the names and places of birth of each of her children

' 

 including 

respondent. The mother is the best witness to the place of the child's 

birth, and she states that he was born in Canada on October 27, 1202. 

His baptismal certificate from St. Philips Church, Petrolia, Ontario, 

omits to state the place of his birth but shows his baptism on December 30, 1908, at Petrolia, Ontario. Exhibit 10 is the record of lawful 

admission Form I-404A. of respondent, showing his entry at Detroit, 

Michigan, on July 4, 1916, with his parents and a brother and sister, 

Antonios and Besine. This record states that respondent's place of 

birth was Petrolia, Ontario, Canada. It shows further that one sister, Monzar (Alonzo), was already in Detroit. There is no record 

of the entrance or place of residence at that time of James. Two other 

children were born to respondent's parents in Detroit at later dates. 

The Board finds on the basis of these exhibits and the entire record 

that respondent was born in Canada at Petrolia, Ontario, on October 27, 1908. 

Respondent was convicted on a plea of guilty in 1939 of breaking 

and entering in the nighttime with intent to commit larceny. He was 

placed on probation for 4 years and ordered to make restitution of 

$225. Tho record discloses that on November 24, 1943, respondent had 

paid only $66 of the restitution and that he was before the court on a 

violation of probation warrant. His probation officer stated that the 

complainant would accept $50 in full payment of the remaining restitution owed. Exhibit 12 shows that on April 15, 1942, respondent was 

discharged to join the Army. 

Respondent was arrested for larceny by conversion and obtaining 

money under false pretenses. He was convicted on the larceny charge 

on October 5, 1961, and placed on probation for 3 years, charged $75 

costs and ordered to make $450 restitution. Respondent was engaged 

in operating a business of selling freezers and a food plan. He testified that he had a number of salesmen in his employ, and that his difficulties came about because many of the purchasers abandoned their 

payments. Respondent's reserves with the :bank were not sufficient to 

cover the losses. 

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The special inquiry officer granted respondent adjustment of status 

_ under section 249 of the Immigration and Nationality Act, ordering 

that a record of lawful admission for permanent residence be made as 

of July 4, 1916, and that these proceedings be terminated. In connection with this adjustment of status it was necessary to grant respondent 

a waiver of excludability under section 212(g) of the Immigration 

and Nationality Act because of respondent's inadmissibility for conviction of the 2 crimes set forth above. The Immigration and Naturalization Service appeals from this order, contending that section 249 

is not approropriate under these circumstances, and that the waiver 

under section 212(g) should not be granted respondent, because it 

should he unconditional, not subject to conditions and revocations 

attached thereto by the special inquiry officer. The Service contends 

further that respondent has not established the good moral character 

required of an applicant for adjustment under section 249, and that 

his deportation would not result in extreme hardship to his United 

States citizen spouse. The order of the special inquiry officer of March 

20, 1963, will be -withdrawn, but these proceedings will be terminated 

under section 212(e) 1of the Immigration and Nationality Act. 

In granting respondent's application for registry under section 249 

of the Immigration and Nationality Act, although there is a. record of 

his lawful admission for permanent residence, the special inquiry 

officer followed Matter of R—, 8 I. & N. Dec. 598 (Ass't. Comm., March 

9, 1960), wherein the Assistant Comraissioner held. that a prior record 

of lawful admission for permanent residence does not preclude adjustment of status under section 249, where the alien's immigration status 

later became unlawful as the result of illegal entry. The special inquiry °Meer quoted the Assistant Commissioner's statement that "a 

subsequent illegal entry vitiates the prior record of lawful admission, 

and if the alien is otherwise eligible, he may be granted the benefits 

of section 249". We have held to the contrary in several decisions since 

Matter of R—. In Matter of M—P—, 9 I. & N. Dee. 747 (BIA, June 

21, 1962), we held that an alien whose original entry was for "lawful 

permanent residence" has not "changed his status" under section 101 

Section 212(e), Immigration and Nationality Act provides: 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 7 consecutive years, may be admitted in the discretion 

of the Attorney General without regard to the provisions of paragraph (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). 

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(a) (20) of the Immigration and Nationality Act 2 by having become 

excludable or deportable. We found that the record of his admission 

for lawful permanent residence is available -within the meaning of 

section 249, that any other interpretation "would render ineffective 

any waivers of inadmissibility now provided by the immigration 

laws." 

In Matter of Preciado-Castillo, Int. Dec. No. 1230 (BM, July 6, 

1962), we found that registry under section 249 is not available for an 

alien who was admitted for permanent residence and who subsequently 

became deportable for causes arising after entry. We stated that 

section 249 was not available to Preciado, for the reasons that there 

existed "a record of lawful entry which has not been vitiated by the 

respondent's subsequent deportability on criminal grounds". 

In Matter of Da Silva, Int. Dec. No. 1268 (BIA, February 21,1963) , 

the Board held that an alien lawfully admitted to the United States 

for permanent residence, who subsequently became deportable because 

of convictions of crimes involving moral turpitude, is statutorily ineligible for adjustment of status under section 245 of the Immigration 

and Nationality Act, as amended. In that decision we drew an analogy 

between adjustment under section 249 and under section 245. We 

pointed out that if the interpretation of the special inquiry officer were 

permitted (granting adjustment under section 245 in these circumstances), section 244(a) (5) suspension of deportation would be 

abandoned. We concluded that Congress did not eliminate section 

244(a) (5), with its more rigorous requirements, and did not, therefore, intend section 245 to have as' road an application as the special 

inquiry officer's interpretation. We said "it seems clear than section 

245 was intended to perform no other function than to permit nonimmigrants to obtain permanent residence status without leaving the 

United States." The Board concludes in the instant case that 

Edwards' 1960 entry cannot be used as the basis for a grant of section 

249 relief from deportation. 

The Board will exercise the discretion contained in section 212(c) 

of the Immigration and Nationality Act in the alien's behalf. The 

authority of the Board to grant this form of relief from deportation 

under the present circumstances was considered in Matter of S—, 6 I. 

& N. Dec. 392 (BIA, November 24, 1954; Atty. Gen., March 15, 1955), 

which is similar to the instant case. The reasoning of that decision 

disposes of most of the issues here. S— had the advantage that he 

2Section 101(a) (20) of the Immigration and Nationality Act provides: The 

term "lawfully admitted for permanent residence" means the status of having 

been lawfully accorded the privilege a residing permanently in the United 

States as an immigrant in accordance with the immigration laws, such status 

not having changed. 

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Interim Decision 4t1333 

had no arrests or convictions for crime of any kind in the United 

States in the ten-year period preceding the decision. 

Section 212(c) of the Immigration and Nationality Act requires that 

the alien must have been "lawfully admitted for permanent residence." Respondent was admitted to the United States for permanent 

residence on July 4, 1916, although he states that he lived here with his 

father for several years before that time. He proceeded to Canada. 

voluntarily and was returning on June 12, 1962, to an unrelinquished 

domicile of 7 consecutive years. His last crime was committed 

October 5, 1961, so that he was inadmissible at the time of his last 

entry. He claimed to be a citizen, and there is some basis in the record 

for believing that respondent thought he was a United States citizen. 

We have held that when an. alien claims citizenship in good faith he 

has not made an entry without inspection. The Service representative felt that the fact that respondent had seen his baptismal certificate 

at the time of his marriage should have corrected his belief that he 

was born in the United States. However, the baptismal certificate, 

while it comes from Petrolia, Ontario, omits to state the place of respondent's birth, although it shows the place of his baptism. The fact 

of respondent's birth. in Canada is established by several declarations 

of the mother in the possession of the Immigration and Naturalization 

Service. However, these documents (Eels. 8 and 10) probably were 

not available to respondent until this proceeding was commenced. 

Respondent stated that his parents and other persons from Lebanon 

came to Detroit where an -uncle owned a large tenement house and 

a door-to-door selling operation. These people were provided. merchandise by the uncle, which they sold in Canada and elsewhere by 

house-to-house canvassing. Respondent testified that he believed that 

he was born in Detroit at a time when his mother was there to obtain 

merchandise, and that he was later taken to Petrolia, for baptism. He 

pointed to the fact that nearly 2 months elapsed after his birth before 

he was baptized, that usually persons of the Roman Catholic faith do 

not permit so long a period to elapse between an infant's birth and the 

time of his baptism. 

Respondent served 3 years in the United. States Army, including 

28 to 30 months in the Aleutian Islands, and was discharged in 

December 1945. He testified to 3 separate occasions while he was in 

the Armed Forces when a commanding officer requested that any one 

who was not naturalized make arrangements for naturalization. He 

testified that he considered. himself a. citizen by birth and for that 

reason did not take advantage of the opportunity when it was offered. 

Respondent also stated that he has voted in the United States since 

1932 when he was 23 years old, a period of over 30 years. These facts 

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do not establish that respondent is a United States citizen, but we 

believe that he probably made the claim in good faith. 

The Service representative stated that the respondent has a "long 

police record". Since 1942 when respondent was discharged from 

probation in order to enter the army, he has been arrested 3 times 

(according to Mai. 12) for violation of the state gambling laws. In 

1947 the charge was dismissed. In 1952 he was sentenced to 1 year, 

placed on probation and charged $50 costs. In 1955 he was given 

sentence of 2 years on probation. Respondent served no time in jail 

except while awaiting trial. His only sentences have been to probation, costs and restitution. 

In granting respondent the waiver of inadmissibility provided in 

section 212(g), the special inquiry officer found that respondent's 

deportation would result in extreme hardship to his United States 

citizen wife. They have been married since 1946, and respondent's 

wife is self-supporting. They have no children. Respondent is now 

working for his wife's brother for a small salary. However, respondent has lived practically his entire life in the United States, and on 

the basis of the entire record deportation would be a harsh punishment. We will order that the proceedings be terminated. 

ORDER: It is ordered that the order of the special inquiry officer 

of March 20,1963, be and is hereby withdrawn. 

It is further ordered that the proceedings be terminated pursuant to 

the discretion contained in section 212(e) of the Immigration and 

Nationality Act, and that the alien be considered as having been 

lawfully admitted to the United States for permanent residence at 

Detroit, Michigan, on June 12, 1962, notwithstanding his inadmissibility at that time as one who was convicted of 2 crimes involving 

moral turpitude, to wit: breaking and entering in the nighttime with 

intent to commit larceny therein, and larceny by conversion (1939 and 

1961), subject to revocation in the discretion of the Attorney General 

after hearing if the alien subsequently commits any offense. 

BEFORE THE BOARD 

(March 9,1964) 

On November 12, 1963, this Board terminated proceedings in this 

matter, pursuant to the discretion contained in section 212(c) of the 

Immigration and Nationality Act, and ordered that the alien be considered as having been lawfully admitted to the United States for 

permanent residence on June 12,1962, notwithstanding his inadmissibility for conviction of the crimes set forth above. We found the 

respondent ineligible for the grant of adjustment under section 249 

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and the waiver of excludability under section 212 (g) of the Immigration and Nationality Act granted by the special inquiry officer. 

It is the position of the Immigration Service in this motion that 

respondent did not make an "entry" into the United States on his 

return from Canada on June 12, 1962, as the term "entry" is interpreted in Rosenberg v. Fleuti, 374 U.S. 449, 10 L. ed. 2d 1000. If the 

respondent made no entry (under the rule of Plata), declares the 

motion, section 212(c) cannot be invoked in respondent's behalf, because section 212(c) applies only to grounds of exclusion. If there 

was no "entry" there can be no ground of inadmissibility under section 

212 (a), and section 212(c) cannot be invoked to waive a nonexistent 

ground of inadmissibility. The Service motion will be denied. 

It is the opinion of the Board that for the purposes of a grant under 

section 212(c) it is not necessary that the respondent's return to the 

United States have been an "entry" under the rule of Fleuti. Section 

212(c) makes no reference to an "entry", but states, "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 7 consecutive years, may be 

admitted in the discretion. of the Attorney General .. .". (Emphasis 

supplied.) It cannot be denied that Edwards was returning to a lawful unrelinquished domicile of more than 7 consecutive years. 

Section 241 describing the "General Classes of Deportable Aliens" 

refers in subsections (1), (2), (3), (4), (6), (7), (8), (10), (11), 

(12), (13), (14), (15), and (16) to various activities following "entry" 

which render an alien deportable. Entry is defined in section 

101(a) (13). However, section 212(c) makes no reference to "entry" 

or requirement that respondent have made an "entry". In the absence 

of Rosenberg v. Fleuti, supra, there would be no question but that this 

respondent would be eligible for a grant of section 212 (e) _ The contention of the Service would extend the Fleuti doctrine to a situation 

which certainly was not contemplated by the Court in issuing this 

decision. We fail to see that extending this doctrine to a grant under 

section 212(c) is necessary, desirable, or justifiable. 

The issues raised under point 2(b) of the Service motion, "Waiver 

under Section 212(0—Discretion", have been considered in our prior 

decision, and there is no need to review these matters here. The motion 

will be denied. 

ORDER : The motion for reconsideration is denied. 

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